dismissed L-1A Case: Construction

pUBLIC copy
identifv i£ ~ihm deleted to.,
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invasionof personalprivety'
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W. Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L)
FILE:
INRE:
PETITION:
LIN 06 05151226
Petitioner:
Beneficiary:
OFFICE: NEBRASKA SERVICE CENTER Dat~R O.{ 2007
ON BEHALF OF PETITIONER:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~r
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 06 05151226
Page 2
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Nebraska Service Center. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(15)(L). The petitioner, a Washington corporation, operates as a subcontractor in the
construction industry. It claims to be a subsidiary of Newway Forming, Ltd., located in Canada. The
beneficiary is currently employed by the petitioner in L-IB status, and the petitioner now seeks to change the
beneficiary's classification from specialized knowledge worker to manager or executive (L-IA) and extend
his period of stay for two additional years.
The director denied the petition concluding that the petitioner had failed to establish that the beneficiary
would be employed in a managerial or executive capacity. The director observed that the evidence submitted
contained several discrepancies with respect to the staffing of the U.S. entity, thus preventing a determination
regarding the structure of the petitioner's business and the beneficiary's specific project. The director thus
found that the evidence did not persuasively establish that the proposed position involves managerial or
executive authority.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO. On appeal, counsel for the petitioner submits an explanation with respect
to the alleged staffing discrepancies observed by the director, and asserts that the beneficiary will indeed be
employed in a managerial capacity. Counsel submits a brief and additional evidence in support of the appeal.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within the three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge
capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(I)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training and employment qualifies him/her to perform the intended
services in the United States; however the work in the United States need not be the
same work which the alien performed abroad.
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be
employed by the petitioner in a managerial capacity. The petitioner does not claim that the beneficiary will be
employed in an executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), provides:
The term "managerial capacity" means an assignment within an organization in which the
employee primarily--
(i) manages the organization, or a department, subdivision, function, or
component of the organization;
(ii) supervises and controls the work of other supervisory, professional, or
managerial employees, or manages an essential function within the
organization, or a department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the
authority to hire and fire or recommend those as well as other personnel
actions (such as promotion and leave authorization), or if no other employee
is directly supervised, functions at a senior level within the organizational
hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function
for which the employee has authority. A first-line supervisor is not
considered to be acting in a managerial capacity merely by virtue of the
supervisor's· supervisory duties unless the employees supervised are
professional.
The nonimmigrant petition was filed on December 7,2005. In a letter dated December 6, 2005, the petitioner
described the beneficiary's proposed duties as follows:
The Company wishes to employ [the beneficiary] as the Project Director for the Legend
Project located in San Diego, California.... [The beneficiary] will be responsible for
oversight and administration of Company's project, and directing, securing, and coordinating
Company resources (which may include technical resources, equipment, personnel,
administrative services, and professional services) to achieve operational efficiency and
maximum profitability. He will be responsible for direction and oversight of company liaison
activities and functions with the affiliate company ....
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Additionally, he will direct and control the compilation, analysis, and processing of all
economic and administrative data and information required for the company operation with
respect to the Benson tower project in Portland, Oregon. He will have authority to approve
and enter into contracts, agreements, contract alterations or modifications and settlements for
connection with the project. He will be responsible for exercising oversight authority to
ensure that all phases of Company's project are in compliance with plans, budgets and
schedules. [The beneficiary] will conduct, determine, and execute financial agreements
within the scope of Company operations.
As indicated above, [the beneficiary's] position is a managerial position involving a high
degree of unsupervised administrative discretion and oversight, innovative thinking and
analysis, effective and decisive management, contractual and budgetary authority (including
authority in hiring promotion, termination). His primary responsibility is to assure overall
construction management and attainment of the Company's short/long range goals and
objectives.
The petitioner submitted an organizational chart for the U.S. company, but the chart did not identify the
beneficiary by name. The chart indicates that the company employs five project managers, each of whom
reports to the operations manager. Underneath the "Benson Tower" project, the chart depicts a general
superintendent, a project coordinator and a project scheduler, a second level of employees which includes a
crane manager, a quality control technician and a flyform truss technician, and a third tier of employees
consisting of "tradesmen." The petitioner stated on Form 1-129that the U.S. company has eight employees.
The director issued a request for evidence on December 13,2005, in part, instructing the petitioner to submit
additional evidence to establish that the beneficiary would be employed in a primarily managerial or
executive capacity. Specifically, the director requested: (1) a complete detailed description of the duties to be
performed by the beneficiary in the United States on each of the assigned projects and the percentage of time
the beneficiary will spend performing each duty; (2) a revised organizational chart that identifies all
employees by name, job title and job duties for each project to be managed by the beneficiary; (3) evidence to
establish that the beneficiary meets each of the four statutory criteria for either managerial or executive
capacity; (4) if the beneficiary will be managing a function, evidence to thoroughly document the essential
nature of the function and evidence concerning the specific nature of the beneficiary's involvement in the
function; (5) copies of the petitioner's IRS Forms W-2, Wage and Tax Statement, for the 2004 year; and (6) a
list identifying all eight of the petitioner's employees by name, job title and job duties, and an explanation of
the beneficiary's duties in relation to the other employees.
In a response dated February 6, 2006, the petitioner clarified that the beneficiary will be assigned as project
director of only one project, the Benson Tower project in Oregon, and submitted the following description of
his proposed duties:
Manage day-to-day activities of the construction project. 45%
• Confer with supervisory personnel, owners, contractors, and design professionals to
discuss and resolve matters such as work procedures, complaints, and construction
problems. (20%)
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• Direct and supervise workers, including overseeing hiring, training and firing of
employees (20%)
• Direct and control the compilation, analysis and processing of all economic and
administrative data and information required for the project (5%)
Plan, organize, and direct activities concerned with the construction and maintenance of
structures, facilities, and systems. 50%
• Schedule the project in logical steps and budget time required to meet deadlines. (5%)
• Study job specifications to determine appropriate construction methods. (5%)
• Determine labor requirements and dispatch workers to construction sites. (5%)
• Inspect and review projects to monitor compliance with building and safety codes, and
other regulations and contractual obligations. (10%)
• Ensure all necessary permits and licenses are obtained. (5%)
• Interpret and explain plans and contract terms to administrative staff, workers, and
clients, representing the owner or developer. (10%)
• Prepare contracts and negotiate revisions, changes and additions to contractual
agreements with architects, consultants, clients, suppliers and subcontractors. (10%)
Direction and oversight of liaison activities with [the foreign entity]. (5%)
The petitioner submitted an organizational chart which depicts the beneficiary as project director, reporting to
a senior project manager, who in turn reports to the operations manager. The chart shows a vacant position for
a project engineer directly beneath the beneficiary's position, and a subordinate level of employees that
includes a crane manager, a carpenter foreman, a layout surveyor, a rigger, a labor foreman, and two flyform
truss technicians. The chart depicts six. carpenters reporting to the carpenter foreman, and four laborers
reporting to the labor foreman.
The petitioner submitted its 2004 Form 1120, U.S. Corporation Income Tax Return, which is for the fiscal
year ending on September 30,2005. The tax return indicates that the petitioner paid salaries and wages in the
amount of $75,649. The petitioner also provided its Washington State Form 5208-B, Quarterly Wage Detail
Report, for the second quarter of 2005, which identifies 26 employees and total wages of $295,218. Only one
of these employees, a carpenter, was identified on the submitted organizational chart.
The petitioner submitted copies of its IRS Forms W-2 for both 2004 and 2005. In 2004, the petitioner paid
gross wages in the amount of $1,144.852.13 to 37 employees, and in 2005, the petitioner paid gross wages in
the amount of $167.576.31 to 17 employees. In 2005, these employees included the beneficiary, who earned
$11,149, the crane manager, the carpenter foreman, the layout/surveyor, the rigger, the labor foreman, five
carpenters and four laborers.
Finally, the petitioner submitted a payroll summary for the pay period ending January 7, 2006, which appears
to include the company's Oregon-based employees only, and reflects employment of the same employees as
those listed on the 2005 Forms W-2.
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Counsel for the petitioner asserted that the beneficiary meets the requirements for managerial capacity
because he manages an essential function, department, or subdivision of the company by managing a multi­
million dollar contract; has the ability to hire, fire and take other personnel actions for employees assigned to
the project; and exercises discretion over the day-to-day operations of the project.
The director denied the petition on February 21,2006, concluding that the petitioner had failed to establish
that the beneficiary will be employed in a primarily managerial or executive capacity. The director found that
the wage and tax information submitted raised "serious questions regarding the operations of the petitioner's
business." Specifically, the director noted the following:
Most notably the petitioner's 2004 U.S. Corporation Income Tax Return indicates distributed
wages in the amount of $75,649.... However, the 2004 W-2 wages statements indicate the
petitioner distributed gross wages of $1,144,852.13. This is a clear discrepancy which the
petitioner has not explained. Further the petition indicates the petitioner has 8 employees.
However. .. the petitioner claims that it has 14 employees at the Benson Tower project and
additional employees at its project sites in Washington and California. The 2004 W-2s
submitted account for 37 employees. It is unclear why the petitioner only claimed 8
employees on the initial petition. Also the petitioner submitted 2005 W-2s for 17 employees.
The evidence submitted constitutes a clear discrepancy regarding the staffing of the
petitioner's business. It is also worth noting that the organizational chart submitted in
response to the request for evidence is substantially different than the chart originally
submitted. Several positions have either been added or deleted. It is therefore impossible for
the Service to determine the actual structure of the petitioner's business and the beneficiary's
related project.
The director concluded that the discrepancies cast serious doubt on the petitioner's operations and the actual
staffing of the business, and also on the record as a whole, including the petitioner's organizational charts.
Consequently, the director determined that the petitioner did not establish that the position offered involves
managerial/executive authority or that the petitioner can actually support a managerial/executive position.
On appeal, counsel for the petitioner addresses each of the discrepancies with respect to the petitioner's wages
and tax record. Counsel asserts that the gross wage figure of $75,649 reported on the petitioner's 2004 tax
return reflect administrative wages only, and explains that revenue and expenses, included the wages of
employees directly assigned to construction jobs, are reflected on the petitioner's balance sheets and tax
returns as contract costs in the year the contract is completed.
Counsel further clarifies that the eight employees listed on the Form 1-129 represented the number of
employees working in Oregon at the time the petition was filed. Counsel asserts that additional employees
will be added as the project progresses, and that the number of employees had grown to 14 at the time the
petitioner responded to the request for evidence. Counsel indicates that the company also has three
employees in Seattle, and 56 employees working on a project in San Diego, noting that the number of
employees changes as the petitioner's projects "ramp up and wind down." Counsel asserts that the number of
management and specialized employees remains roughly the same, while the number of laborers and
tradesmen is constantly fluctuating.
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In addition, counsel asserts that the discrepancies between the submitted organizational charts are attributable
to the growth of the Benson Tower project. Counsel states that the first organizational chart depicted the
general structure of each of the petitioner's projects, while the second chart was submitted to clarify the
positions currently on-site in the Benson Tower project as of the date of filing. Counsel further asserts:
"Although the titles of some positions differed, the general structure did not. There are still three layers of
subordinates below [the beneficiary]. He supervises six to eight individuals who are either responsible for an
area of the project's operation ... or individuals who manage other employees."
Counsel concludes by emphasizing that the beneficiary has multiple layers of subordinates working under
him, is responsible for hiring and firing staff, and is ultimately responsible for the projects' day-to-day
activities, as well as responsible for ensuring that the project is completed on time, on budget, and according
to specifications.
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary will
be employed in a primarily managerial capacity under the extended petition. Preliminarily, the AAO notes
that the evidence submitted on appeal resolves many of the discrepancies noted by the director with respect to
the petitioner's staffing levels. However, upon review of the totality of the record, there is insufficient
evidence to establish that the beneficiary's duties would be primarily managerial in nature.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 2l4.2(1)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
in either an executive or a managerial capacity. /d.
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table),
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite
authority, but that a majority of his or her duties are related to operational or policy management, not to the
supervision of lower-level employees, or the performance of other non-managerial or non-executive duties.
The petitioner has provided a fairly detailed breakdown of the duties to be performed by the beneficiary in his
role as project director, however, the job description fails to establish that the beneficiary's duties will be
primarily managerial in nature. For example, the beneficiary's responsibilities include project scheduling,
studying job specifications, determining labor requirements and dispatching workers to construction sites,
inspecting and reviewing projects, ensuring that licenses and permits are obtained, explaining plans and
contract terms to workers, and preparing contracts with architects, consultants, clients, suppliers and
subcontractors. These duties, which account for approximately half of the beneficiary's time, appear to be
more akin to those of a first-line supervisor rather than the high-level responsibilities contemplated by the
statutory definition of managerial capacity.
Further, although the petitioner has resolved many discrepancies regarding the staffing of the U.s. company
and the beneficiary's specific project, the AAO notes the record does not support the petitioner's claims
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regarding the beneficiary's level of authority over his assigned project. The original organizational chart
submitted showed that the petitioning company's construction projects are typically staffed by a project
manager, who in turn supervises a tier of supervisory employees, including a general superintendent, a project
coordinator and a project scheduler, who then supervise specialists, and various tradesmen. The more detailed
chart submitted in response to the director's request for evidence clearly shows that the beneficiary, as
"project director" is not the highest-level manager responsible for the project, nOf does he supervise a
superintendent, project coordinator or project scheduler, or any other tier of supervisory employees. Rather,
the chart shows that the beneficiary is supervised by a senior project manager, and that he directly supervises
the employees who are providing the petitioner's construction services. The chart depicts a vacant project
engineer position between the beneficiary and the skilled workers assigned to the project, but such role was
clearly not filled at the time the petition was filed or at the time the petitioner responded to the request for
evidence. Therefore, a review of the petitioner's organizational structure further supports a conclusion that the
beneficiary's duties and level of authority, notwithstanding his job title, are similar to those of a project
coordinator or superintendent.
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function
managers." See section lOl(a)(44)(A)(i) and (ii) of the Act, 8 U.S.c. § 1101(a)(44)(A)(i) and (ii). Personnel
managers are required to primarily supervise and control the work of other supervisory, professional, or
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly
states that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue of
the supervisor's supervisory duties unless the employees supervised are professional." Section
101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those
actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(1)(ii)(B)(3).
Here, the record does not establish that the heneficiary is primarily supervising professional, managerial, or
supervisory employees. The majority of the beneficiary's subordinates appear to be skilled workers engaged
in providing construction services. Though requested by the director, the petitioner did not provide job
descriptions for the beneficiary's subordinates, nor the level of education required to perform the duties of the
positions subordinate to the beneficiary. Any failure to submit requested evidence that precludes a material
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Thus, the petitioner has not
established that these employees possess or require a bachelor's degree, such that they could be classified as
professionals. Because the petitioner failed to provide the requested job duties for the beneficiary's
subordinates, it has not shown that either of these employees supervise subordinate staff members or manage
a clearly defined department or function of the petitioner, such that they could be classified as managers or
supervisors. The petitioner has not provided evidence of an organizational structure sufficient to elevate the
beneficiary to a supervisory position that is higher than a first-line supervisor of non-professional employees.
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a
subordinate staff but instead is primarily responsible for managing an "essential function" within the
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.c. § 1101(a)(44)(A)(ii). The term "essential
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential
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nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the
essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties
related to the function. An employee who primarily performs the tasks necessary to produce a product or to
provide services is not considered to be "primarily" employed in a managerial or executive capacity. Boyang,
Ltd. v. I.NS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology
International, 19 I&N Dec. 593,604 (Comm. 1988». In this matter, the petitioner has not provided evidence
that the beneficiary manages an essential function.
While the record establishes that the beneficiary will have oversight authority over the day-to-day activities of
the project to which he has been assigned, as discussed above, the record shows that he will be supervised by
a senior project manager, who is reasonably assumed to exercise the highest level of authority over the
employees, activities and functions of the project. The petitioner has not shown that the beneficiary will
function at a senior level within the organizational hierarchy with respect to the function managed, or that his
duties will be primarily the high-level managerial duties required by the statutory definitions.
The AAO acknowledges the petitioner's claim that the project to which the beneficiary is assigned was not
fully staffed as of the date of filing, and that the number of employees is expected to increase in the future.
While the project may eventually grow to the point where the petitioner requires the beneficiary's services in a
primarily managerial capacity, the petitioner must establish eligibility at the time of filing the nonimmigrant
visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes
eligible under a new set of fac~s. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The
petitioner has not submitted evidence that the beneficiary's role in the project at the time of filing was higher
than that of a first-line supervisor of skilled workers. Accordingly, the appeal will be dismissed.
Beyond the decision of the director, the AAO finds that even if the petitioner had established that the
beneficiary's proposed position as project director would be in a managerial capacity, such that he would be
eligible for a change of status from L-1B classification to L-1A classification, the record does not establish
that the beneficiary is eligible for an extension of his L-1 status.
The regulation at 8 C.F.R. § 214.2(l)(15)(ii) states the following, in pertinent part:
The total period of stay may not exceed five years for aliens employed in a specialized
knowledge capacity. The total period of stay for an alien employed in a managerial or
executive capacity may not exceed seven years. No further extensions may be granted. When
an alien was initially admitted to the United States in a specialized knowledge capacity and is
later promoted to a managerial or executive position, he or she must have been employed in
the managerial or executive position for at least six months to be eligible for the total period
of stay of seven years. The change to managerial or executive capacity must have been
approved by [Citizenship and Immigration Services] in an amended, new, or extended
petition at the time that the change occurred.
In support of the petition, the petitioner submitted the beneficiary's most recent Form I-797B Approval
Notice, granting the beneficiary L-lB classification from December 23, 2002 until December 22, 2005 (LIN
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03 076 50036). The petitioner did not complete Section 1, Question 2 of the L Classification Supplement to
Form 1-129, which requests a list of the beneficiary's prior periods of stay in the United States in L
classification for the last seven years, along with photocopies of Forms 1-94 and Forms 1-797 documenting
these periods of stay. However, the foreign entity stated in a letter dated December 6, 2005 that the
beneficiary "was transferred to the U.S. five years ago."
U.S. Citizenship and Immigration Services records show that the petitioner filed a Form 1-129 petition
requesting L-IB classification on behalf of the beneficiary on January 7, 2000, and that the petition was
approved with an expiration date of December 23,2002 (LIN 00 069 50862). Although the beneficiary's exact
dates of stay in the United States have not been provided, it appears that he had been granted L-IB
classification for a period of more than four years and six months at the time the instant petition was filed on
December 7,2005. Thus, the petitioner did not file, and Citizenship and Immigration Services (CIS) did not
approve, an amended, new or extended petition changing the beneficiary's classification to L-1A status within
six months of the expiration of the beneficiary's total permissible period of stay of five years.
While neither the petitioner nor counsel specifically address the beneficiary's eligibility for an extension of
stay pursuant to 8 C.F.R. § 214.2(l)(l5)(ii), the petitioner suggested that the beneficiary was employed in a
managerial capacity prior to his transfer to the United States, and that he has been employed in such a
capacity with the petitioner, although the U.S. company also had a need for his specialized knowledge.
However, the petitioner was nevertheless obligated to document the beneficiary's assumption of managerial
duties in an amended, new, or extended petition at least six months before the beneficiary reached the end of
his L-1B five-year period of stay if it had wanted to preserve its opportunity to extend the beneficiary's stay
through the seventh year. See 8 C.F.R. § 214.2(l)(15)(ii) (requiring that "the change to managerial or
executive capacity must have been approved by [CIS] in an amended, new, or extended petition at the time
the change occurred.") Therefore, in this case, as the petitioner chose not to document the beneficiary's ­
assumption of managerial duties as required by the regulations, the regulations prohibit an extension beyond
the fifth year even if the beneficiary could be established to have been performing managerial duties from the
beginning of his employment in 2000. Even if the director had granted the request for L-IA classification, the
beneficiary's status could not be extended beyond the maximum five-year period permitted by regulation,
taking into account the total time the beneficiary has spent physically present in the United States. The exact
date on which the beneficiary would reach his five-year period of stay has not been determined; therefore, the
AAO notes this deficiency for the record and will not discuss this issue further.
Finally, beyond the decision of the director, it is noted that the petitioner indicated under penalty of petjury
in Part 4 of the Form 1-129 petition that the beneficiary had never been denied the requested classification.
This petition was filed on December 7, 200S. However, CIS records show that the petitioner filed a Form 1­
129 petition requesting L-l classification on February 12, 2005, which was subsequently denied on July 22,
2005 (LIN 03 076 50036). The regulations at 8 C.F.R. § 214.2(l)(2)(i) state that "[f]ailure to make a full
disclosure of previous petitions filed may result in a denial of the petition." As the petitioner indicated on the
Form 1-129that the beneficiary had never been denied the requested classification, and the petitioner failed to
fully disclose the previously filed petitions, this petition win be denied as a matter of discretion.
An application or petition that fails to comply with the technical requirements of the law may be denied by the
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
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Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d ,Cir. 1989)(noting that the AAO reviews
appeals ona de novo basis).
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361.
Here, that burden has not been met.
ORDER: The appeal is dismissed.