dismissed L-1A Case: Construction And Trade

tdiadfylngdItade1elldto
preventclearlyunwlIllmted
invasionofpmonalprivacy
~UBL'CCOPY
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm.3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File:
INRE:
Petition:
EAC 07 007 50813 Office: VERMONT SERVICE CENTER Date:S£P 0 6 2001
Petitioner:
Beneficia
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
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~ert~~f
Administrative Appeals Office
www.uscis.gov
EAC 07 007 50813
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. 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-1A nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(15)(L). The petitioner, a New York corporation, intends to operate a construction,
import/export and general sales business. It claims to be a subsidiary of Waheed Corporation, located in
Lahore, Pakistan. The petitioner seeks to employ the beneficiary as general manager of its new office in the
United States for a three-year period.'
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be
employed by the U.S. entity in a primarily managerial or executive capacity within one year.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary will be
employed in an executive and managerial capacity with responsibility for supervising professionals. The
petitioner contends that the director "offers only a perceived notion that the nature of our organization is such
that it would not require a professional." The petitioner asserts that the company will engage in commercial
and non-commercial construction activities as well as importing and exporting merchandise in "large scale"
and will clearly require a manager.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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 three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof 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)(1)(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.
1 Pursuant to the regulation at 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to the United States
to open or be employed in a new office, the petition may be approved for a period not to exceed one year.
EAC 07 007 50813
Page 3
(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 regulation at 8 C.F.R. § 214.2(l)(3)(v) also provides that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office in the United
States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involves executive or managerial authority over the new
operation; and
(C) The intended United States operation, within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (l)(1)(ii)(B)
or (C) of this section supported by information regarding:
(1) The proposed nature of the office describing the scope of the entity, its
organizational structure, and its financial goals;
(2) The size of the United States investment and the financial ability of the
foreign entity to remunerate the beneficiary and to commence doing business
in the United States; and
(3) The organizational structure of the foreign entity.
The sole issue addressed by the director is whether, within one year, the petitioner will employ the beneficiary
in a primarily managerial or executive capacity, as required by 8 C.F.R. § 214.2(l)(3)(v)(C).
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as 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,
EAC 07 007 50813
Page 4
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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by
CIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United
States to open a new office. When a new business is first established and commences operations, the
regulations recognize that a designated manager or executive responsible for setting up operations will be
engaged in a variety of low-level activities not normally performed by employees at the executive or
managerial level and that often the full range of managerial responsibility cannot be performed in that first
year. In an accommodation that is more lenient than the strict language of the statute, the "new office"
regulations allow a newly established petitioner one year to develop to a point that it can support the
employment of an alien in a primarily managerial or executive position.
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office,"
it must show that it is prepared to commence doing business immediately upon approval so that it will support
a manager or executive within the one-year timeframe. This evidence should demonstrate a realistic
expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental
stage to full operations, where there would be an actual need for a manager or executive who will primarily
perform qualifying duties. See generally, 8 C.F.R. § 214.2(1)(3)(v). At the time of filing the petition to open a
"new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to
house the new office and that it will support the beneficiary in a managerial or executive position within one
year of approval. Specifically, the petitioner must describe the nature of its business, its proposed
organizational structure and financial goals, and submit evidence to show that it has the financial ability to
remunerate the beneficiary and commence doing business in the United States. Id.
The nonimmigrant petition was filed on October 10,2006. In a letter dated September 15,2006, the petitioner
stated that the beneficiary would perform the following duties as director and general manager of the new
office:
EAC 07 007 50813
Page 5
He will direct, manage, supervise and control other professionals and make policy decisions
for this company. He will also be managing all business contracts, outside contractors and
sub-contractors, and be responsible for day-to-day operations.
Specifically, his job duties will include:
1. Establish company policies in collaboration with president and parent company
executives.
2. Implement the organization's policies on a day-to-day basis.
3. Oversee and monitor operations.
4. Meet with customers and contractors.
5. Negotiate and sign company contracts.
6. Attend high level meetings and set goals.
7. Coordinate and direct other professionals, manage budgets and contracts, and ensure that
organization's objectives are met.
8. Implement procedures to improve productivity and customer service.
9. Planning, directing, and coordinating the operations of company.
10. Hiring and firing of employees.
The petitioner submitted a proposed organizational chart for the U.S. company showing that the beneficiary
will report to the company president and will supervise a sales manager and a bookkeeper. The chart shows
that the sales manager will supervise sales staff, while the bookkeeper will supervise an office secretary and
office staff. The petitioner provided a brief job description for each proposed position as follows:
President: Assume full responsibility of overall management and development. Formulate
company strategies, set guidelines, targets and makes corporate decisions. Monitor the
performance of managers. Reports to the Board of Directors of overall company policies and
position.
General Manager: Formulate and direct policy decisions regarding the management and
operations of the company, negotiate deals, manage cash flows, set goals and deadlines,
hiring and firing of employees, set company strategies, supervise other professionals, and
manage and sign contracts.
Sales Manager: Direct the firm's sales program, assign sales territories and goals. Maintain
contact with dealers and distributors. Determine sales potential and inventory requirements
and monitor the preferences of customers. Manage all aspects of developing and executing an
integrated marketing plan. Manage sales staff.
Sales staff: Assist Sales Manager in carrying out firm's sales activities.
Bookkeeper: Maintain general ledger and payroll, reconcile and prepare statements and
secure complete financial records. Process invoices and prepare financial reports.
Office Secretary: Schedule appointments and meetings, organize and maintain files. Manage
client contracts, company reports and prepare reports. Supervise clerks and other written
materials related to office work and functions.
EAC 07 007 50813
Page 6
Office Staff: Answer telephone, operate office equipment including fax machine,
photocopies and computers. Prepare rnailingsr maintain and update office records and take
inventory.
The director requested additional evidence on October 19, 2006, advising the petitioner that the evidence
submitted did not demonstrate that the beneficiary, within one year, would be relieved from performing the
non-managerial day-to-day operations of the company. The director acknowledged the evidence submitted in
support of the petition, but noted that it did not seem plausible that the U.S. company, which intends to
engage in construction and import/export services, would require the services of bona fide managers or
professionals. The director requested a detailed description for each proposed employee and an explanation
as to how each would be managerial or professional in nature.
In a response dated November 20, 2006, the petitioner stated that the beneficiary's duties were fully outlined
in its initial letter, and clearly "establish him to be in a managerial and professional position." The petitioner
emphasized that the duties are "above and beyond those performed by ordinary employees of the company as
they require management of subordinates, company resources, such as finance, planning, long and short term
contracts, hiring and firing of employees, etc." The petitioner indicated that the beneficiary would also
oversee and direct outside contractors, including professionals such as architects, engineers and construction
managers.
The petitioner noted that the sales manager's proposed duties are both managerial and professional in nature,
as the employee will manage sales programs for the import/export division of the business, promote the
company's construction services, and work with the general manager to devise marketing plans, sales
forecasts, prepare sales reports and market the company to potential buyers, in addition to supervising sales
employees, who will perform the routine aspects of the sales function. The petitioner stated that the
company's bookkeeper would also be a professional employee, while the remaining staff would be non­
professional.
The director denied the petition on December 1, 2006, concluding that the petitioner had failed to establish
that the beneficiary would be employed in a primarily managerial or executive capacity within one year. The
director rejected the petitioner's assertion that the company would require the services of a professional sales
manager, or that the position of bookkeeper requires the services of a professional. The director also found
insufficient evidence to establish that the beneficiary would manage a function of the organization, or
function at a senior level within the organizational hierarchy, other than in position title. The director
acknowledged that the petitioner listed a number of duties that would normally be required of a manager or
executive, but determined that the evidence did not demonstrate that the company would require a manager or
executive to perform the tasks listed on a full-time basis.
On appeal, the petitioner asserts that the beneficiary's proposed duties and functions meet the requirements of
section 101(a)(44) of the Act, "as the beneficiary will be employed in an executive and managerial capacity
within our organization performing professional duties and supervising other professionals." The petitioner
claims that the director's decision is based on a "perceived notion that the nature of our organization is such
that it would not require a professional." The petitioner further explains:
EAC 07 007 50813
Page 7
[The petitioning company] intents [sic] to engage in the commercial and non-commercial
construction business. In addition, we will also be importing and exporting merchandise in
collaboration with our parent company abroad on a large scale. Such activities clearly require
services of professionals to manage the organization. We have clearly established through the
preponderance of evidence that the beneficiary and our organization unequivocally qualifies
for the position.
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be
employed by the United States entity in a managerial or executive capacity within one year.
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. § 214.2(l)(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
either in an executive or managerial capacity. Id. Beyond the required description of the job duties, USCIS
reviews the totality of the record when examining the claimed managerial or executive capacity of a
beneficiary, including the petitioner's proposed organizational structure, the duties of the beneficiary's
proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other
employees to relieve the beneficiary from performing operational duties at the end of the first year of
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete
understanding of a beneficiary's actual duties and role in a business. The petitioner's evidence should
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from
the developmental stage to full operations, where there would be an actual need for a manager or executive
who will primarily perform qualifying duties. See generally, 8 C.F.R. § 214.2(l)(3)(v).
In the instant matter, the petitioner has repeatedly described the beneficiary's proposed position in broad and
general terms, noting that his responsibilities would include: "establish company policies," "implement the
organization's policies," "oversee and monitor operations," "implement procedures to improve productivity
and customer service," attend "high level meetings" and "set goals," and "planning, directing, and
coordinating the operations of the company." Many of these duties merely paraphrase portions of the
statutory definitions of managerial and executive capacity at section 101(a)(44) of the Act, and overlap
significantly with the duties attributed to the beneficiary's supervisor, the company president, who is
described as being responsible for "overall company policies," formulating strategies, setting guidelines and
targets, and making corporate decisions. Reciting the beneficiary's vague job responsibilities or broadly-cast
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job
duties. The petitioner has failed to provide any detail or explanation of the beneficiary's proposed activities in
the course of his daily routine. The actual duties themselves will reveal the true nature of the employment.
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
The beneficiary's responsibilities for meeting with customers and contractors, and negotiating and signing
company contracts have not been described in sufficient detail to establish that the duties associated with
these responsibilities would be primarily managerial or executive in nature. The petitioner did not identify the
types of meetings, negotiations or contracts that would require the beneficiary's personal attention. Specifics
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros.
Co., Ltd. v. Sava, 724 F. Supp. at 1108.
EAC 07 007 50813
Page 8
Further, while some duties described by the petitioner would generally fall under the definitions of managerial
or executive capacity, the minimal supporting evidence submitted in support of the petition,and in response to
the request for evidence, raises questions as to how long it would realistically take the U.S. company to
develop to the point where it would require the beneficiary to perform duties that are primarily managerial or
executive in nature. The fact that the petitioner appears to already employ a president raises additional
questions regarding the company's need for a second managerial or executive employee during the start-up
phase. Overall, the beneficiary's job description alone falls significantly short of establishing that his duties
will be primarily managerial or executive in nature within one year of commencing operations.
The totality of the record must be considered in analyzing whether the proposed duties are plausible
considering the petitioner's anticipated staffing levels and stage of development within a one-year period.
Upon review, the supporting evidence does not provide a clear depiction of the petitioner's proposed hiring
plan. The petitioner claims that it intends to engage in construction services, import and export activities, and
"general sales." The petitioner has never explained what types of goods it intends to import, export or sell.
The petitioner claims that it intends to engage in "large scale" import and export with its parent company, yet
a review of the organizational chart and position descriptions submitted for the foreign entity's employees
reveals that not a single employee performs duties related to import and export activities. All of the foreign
entity's claimed employees perform duties related to construction activities. According to the foreign entity's
profit and loss statements, all of the company's income is derived from "transportation receipts." The AAO
further notes that none of the petitioner's proposed staff are described as performing import or export-related
functions. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the
petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec.
582, 591-92 (BIA 1988).
The petitioner also claims that it will engage in construction services, but again, did not indicate its intention
to hire any employees to perform construction-related activities. The petitioner mentioned in response to the
request for evidence that the beneficiary would oversee "outside subcontractors" such as architects, engineers,
and construction managers, but there was no reference to any such employees at the time the petition was
filed. The petitioner's proposed organizational chart, while it included employees to perform routine
administrative, financial and sales duties, did not account for workers to perform such essential duties as
purchasing, coordinating import and export activities, warehouse management, logistics, or construction
activities. Thus, it is unclear that the beneficiary would in fact be relieved from performing the day-to-day
operations of the company within one year.
It should be noted that the AAO's review of this issue is severely restricted by the petitioner's failure to submit
evidence or information regarding the proposed nature of the office, the anticipated scope of the entity, and its
financial goals, as required by 8 C.F.R. § 214.2(l)(3)(v)(2). As contemplated by the regulations, a
comprehensive business plan should contain, at a minimum, a description of the business, its products and/or
services, and its objectives. See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the
precedent relates to the regulatory requirements for the alien entrepreneur immigrant visa classification,
Matter ofHo is instructive as to the contents of an acceptable business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
EAC 07 007 50813
Page 9
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefore. Most importantly, the business plan must be credible.
Id.
Based on the petitioner's representations, the U.S. company intends to operate a construction, import/export
and "general sales" company, intends to hire only sales and administrative employees, and intends to employ
the beneficiary to perform many of the same duties attributed to the petitioner's president. The company has a
lease agreement for office space, and perhaps a storage room, and has $35,300 in the bank. No other
information or evidence has been provided to establish how the petitioner will grow to a size where it will
require the services of a second managerial or executive employee within one year. While a business plan is
not explicitly required by the regulations, the petitioner has provided no explanation regarding the intended
scope of the organization or its financial goals, no timeline for hiring additional employees, insufficient
evidence of the size of the investment required for start-up operations, no financial objectives or projections
for the company's start-up operations, and no indication of what the company intends to import, export and
sell. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The AAO cannot speculate as to when the proposed employees might be hired or otherwise determine how
many employees the company would support at the end of the first year of operations, or who would be
performing the day-to-day, non-managerial functions of the import/export and construction company. There
is insufficient evidence to support the petitioner's claim that the beneficiary would supervise subordinate
managers and professionals within one year, nor does the record establish that the beneficiary would be
performing the duties of an executive, as the petitioner already employs a president.
The AAO does not doubt that the beneficiary would have some degree of supervisory authority over the
petitioner's start-up operations. However, the definitions of executive and managerial capacity have two
separate requirements. First, the petitioner must show that the beneficiary performs the high-level
responsibilities that are specified in the definitions. Second, the petitioner must show 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). Overall, the vague job description provided for the beneficiary, the lack of detail regarding the
petitioner's business plan and hiring plan for the first year of operations, considered with the lack of evidence
of the size of the U.S. investment as discussed further below, prohibits a determination that the petitioner
could realistically support a managerial or executive position within one year. For this reason, the appeal
will be dismissed.
EAC 07 007 50813
Page 10
Beyond the decision of the director, the evidence of record does not establish that the beneficiary was
employed by the foreign entity in a primarily managerial or executive capacity for at least one continuous
year within the three years preceding the filing of the petition, as required by 8 C.F.R. § 214.2(l)(3)(v)(B).
The petitioner stated on Form 1-129 that the beneficiary has been employed by the claimed parent company,
Waheed Corporation, since January 2003. At the time of filing, the beneficiary had been in the United States
as a nonimmigrant visitor in B-2 status for approximately one year. The evidence submitted in support of the
petition had included a brief letter from the foreign entity's president, and a copy of the beneficiary's 2005­
2006 Pakistani "Wealth Tax Return" which appears to be a report of his assets, debts and expenditures, rather
than his income for the year. The beneficiary identified his business address as the foreign entity's address on
the tax return.
On October 19, 2006, the director requested additional evidence to establish that the beneficiary has been
employed abroad in a managerial or executive capacity for one year within the three years prior to the date the
petition was filed. The director noted that the petitioner should submit the beneficiary's last annual tax return
and tax withholding statement reflecting the employer, copies of payroll documents reflecting the
beneficiary's period of employment and salary, and "other unequivocal evidence establishing the foreign
employment by the beneficiary." In response, the petitioner re-submitted the beneficiary's wealth tax return.
Upon review, the evidence submitted is insufficient to establish that the beneficiary was employed by the
foreign entity for the required time period. The beneficiary's 2006 wealth tax return, most of which covered a
period of time during which he was in the United States as a visitor, does not establish his full-time
employment with the foreign entity for one full year within the three years preceding the filing of the petition.
The director specifically requested payroll documents reflecting his period of employment and salary, and an
income tax return or unequivocal evidence establishing his employment with the foreign entity. Instead of
providing the requested documentation, the petitioner resubmitted a document already reviewed by the
director and found to be insufficient. 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)(l4). For this additional reason, the
petition cannot be approved.
An additional issue not addressed by the director is whether the petitioner provided sufficient evidence of the
size of the financial investment in the new United States office, as required by 8 C.F.R. §
214.2(l)(3)(v)(C)(2). Although the petitioner has provided evidence that the foreign entity transferred
$35,300 to the U.S. entity in September 2006, the petitioner has not outlined its anticipated capital
requirements and start-up costs, and it is thus impossible 'to evaluate whether this amount of money would
allow the petitioner to commence operations in the United States.
Finally, the AAO notes that the lease agreement and photographs submitted do not clearly establish that the
petitioner has secured sufficient physical premises to house the new office, as required by 8 C.F.R. §
214.2(l)(3)(v)(A). The petitioner has not described its anticipated space requirements for its proposed
construction, import/export and general sales business, and the lease agreement submitted does not identify
the size or intended use of the leased property. The director specifically requested photographs of the interior
and exterior of the leased premises. The photographs submitted show four different desks with computers and
stacks of paper, and a storage or warehouse room with piles of boxes, as well as a door with a computer­
printed sign that indicates the petitioner's company name. The petitioner did not submit photographs of the
exterior of the building, and it cannot be determined whether the photographs depict suite 9B located at 1609
Ocean Avenue in Brooklyn, New York. Again, failure to submit requested evidence that precludes a material
EAC 07 007 50813
Page 11
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). For this additional reason,
the petition cannot be approved.
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
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 Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a 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.