dismissed L-1A Case: Consulting And Translation

PUBhICCOPY
.. identifyq ..deletedto
prev.ritcleariyunwarranted
inVa8i~ of personalprivacy
U.S. Department of~om!!~and Security
20 Massachusetts Ave. N.W., Rm. A3000
Washington, DC 20S"Zl)"'-
U.S.Citizenship
and Immigration
Services .
File:. SRC 04 063 50771 Office: TEXAS SERVICE CENTER Date: DEC 0 62006
INRE: Petitioner:
Beneficiary:
Petition:
"­
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)
IN BEHALF OF PETITIONER:
~ .. \.
INSTRUCnONS:
,
/ / l..
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
theoffice that originally decided your case. Any further inquiry must be made to that office.
I .
"R~b;~,~--"-
Administrative Appeals Office
\
www.uscis.gov
SRC 04 06350771
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa: The matter
is now before the Administrative Appeals Office.(AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its manager 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)(l5)(L). The petitioner is a limited liability company organized in the State
of Texas that initially claimed to be engaged in consulting and translation services, b
~
e en a ed in catering services.' The petitioner claims that it is the subsidiary of
ocated in Barcelona, Venezuela. The beneficiary wa~ initially grante a one-year peno 0
s ay 0 open a new office in the United States, and the petitioner now seeks to extend the beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish that (l) the beneficiary will be
employed in the United States in a primarily managerial or executive capacity, or (2) the petitioner had been
doing business for the previous year as required by the regulations,
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, counsel fos the petitioner asserts that the director
erred in denying the extension and made incorrect legal decisions about what constitutes doing business and. ,
what constitutes a function manager. Counsel alleges that the petitioner did in fact employ the beneficiary in
a managerial capacity since the beneficiary managed an essential function within the organization.
Furthermore, counsel alleges that the petitioner did business during the previous year but that, due to the hard
economy, it was unable to hire the computer employees it required and therefore switched the focus of its
business to catering. In support of these assertions, counsel for the petitioner submits a brief and additional
evidence.
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,executiye,or
specialize~ knowledge capacity.
The regulation at 8 c.P.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
-c
accompanied by:
(i) Evidence that the petitioner and the. organization which employed or will employ the
alien are qualifying organizations as.defined in paragraph (l)(l )(ii)(G) of this section.
] It should be noted that, according to the Texas Comptroller of Public Accounts, the petitioner is not
currently in good standing in Texas due to the failure, to satisfy all state tax requirements. Therefore,
regardless of whether the petitioner's tax issues in Texas can be easily remedied or not, it raises the critical
issue of the company's continued existence as a legal entity in the United States.
SRC 04 063 50771
Page 3
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detaile'd 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.
(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 SC.F.R. § 2l4.2(1)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(a)
(b)
(c)
(d)
(e)
Evidence that the United States and foreign entities are still qualifying organizations
I
as defined in paragraph (1)(1)(ii)(G) of this section; . /
Evidence that the United States entity has been doing business as defined III
paragraph (1)(1)(ii)(H) of this section for the previous year;
A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
Evidence of the financial status of the United States operation.
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in
a primarily managerial or executive capacity. '
Section 101(a)(44)(A) of the Act, S U.S.C. § llOl(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;.
SRC 04 063 50771
Page 4
(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.
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 ..
On the L Supplement to the petition, the petitioner stated that the beneficiary:
Directs and establishes goals for the company and [is] responsible for all marketing and
promotion of [the] company in the computet: consulting and translation business. [She] [w]ill
hire and fire employe,es, and supervise. the employees and independent contractors and their
assignments. [She] [e ]xercises wide latitude in discretionary decision-making].] [She] [wJill
establish and oversee budget,
Additionally, the petitioner submitted a letter dated December 10, 2003 prepared by the beneficiary as
manager of the petitioner. This letter stated that "the business is now focusing more on translation services
and catering rather than import/export. The business continues to do computer consulting. Because this is a
new company, I was unable to take a full salary this year."
SRC 04 06350771
Page 5
Finally, the petitioner submitted its Form 1065~ U.S. Return of Partnership Income, for 2002, which indicated
that no salaries or wages had been paid during that time, and that the .petitioner had gross receipts in the
'I
amount of$2,47L
On .February 27, 2004, the director requested additional evidence. Specifically, the director requested a
defi~itive statement regarding the employment of the benefi~i~ry,in;lu:ding amore detailed description of her
duties, the percentage of time she devoted to each duty, the 'level ~f authority held by the beneficiary, and her
position in the petitioner's organizational hierarchy. The director also requested a similar overview of the
dutl:es of all other employees and/or contractors along ,with .their educational backgrounds, titles, and ranks
within the petitioner's organization. The director noted, that if the beneficiary did not supervise other
employees, a statement describing the essential function the beneficiary. managed was required.
In response, counsel for the petitioner submitted a letter datedMay 2~; 20Q4. Counsel stated that there were
no employees of the petitioner for 2003, as this was its first year of operations, Asa result of this difficult
first year, counsel further confirmed that the beneficiary did not take a. salary .. Counsel explained that the
beneficiary was currently the only employee of the U.S. entity and referred to exhibit 8 of the response for a
mote detailed description of the beneficiary's duties. However, Exhibit 8 of the response is merely a .blank
sheet of yellow paper. No further discussion ofthe beneficiary's duties was pr.ovided.
Furthermore, counsel alleges that wages were paid to an independent contractor who performed services on
behalf of the petitioner during this period, but that no 1099, forms were available. Counsel refers to the
petitioner's bank statements from February 2003 and May 2003" which she alleges demonstrate the payment
ofirages to this independent contractor. However, these statements merely show that checks written from the
petitioner's account have cleared; the payee and the nature of the payment are not provided, nor are copies of
the cancelled checks.
On June 12, 2004, the director denied the petitiRn. The director determined that the beneficiary had not acted
in a primarily managerial or executive capaci.ty during the previous year, and that the petitioner had not yet
reached the point where it could support the beneficiary in such a capacity. The director also noted that the
. petitioner had failed to establish that the beneficiary was managing an essential function of the organization,
such that she could be deemed a function manager.
On appeal, counsel. for the petitioner submits additional evidence in support of the beneficiary's
qualifications, and alleges in her appeal brief that the beneficiary is both an executive and a manager. As
evidence of meeting the requirements of both capacities, counsel asserts that the beneficiary directs and
manages a major function of the organization, namely the catering division.
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. § 2 l4.2(l)(3)(ii). The petitioner's description ofthe 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. In this case, counsel on appeal clarifies that the beneficiary
is primarily engaged' in managerial duties under section 101(a)(44)(A) of the Act as well as primarily
executive duties under section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a
SRC 04 06350771
Page 6
hybrid "executive/manager" and rely on partial sections of the two statutory definitions .. If the petitioner. ~
chooses to represent the beneficiary as both an executive and a manager, it must establish that the beneficiary
meets each of the four criteria set forth in the statutory definition for e.:tecutiveand the statutory definition for
manager.
Th~ initial description of duties provided by the petitioner in these proceedings did little to describe the
beneficiary's actual duties, nor did it describe the nature of the beneficiary's.day-to-day tasks. Instead, it
merely provided a vague overview of the nature of her duties. As previously stated, the initial evidence
submitted was insufficient to warrant approval and, consequently, the~ director requested more specific
information, including a more specific description of the beneficiary's duties. The petitioner responded to this
request; however, the exhibit allegedly containing the updated description of the beneficiary's duties was not
provided. As a result, the petitioner will be adjudicated based on the description of duties provided with the
initial petition.
The AAO, upon review of the record of proceeding, concurs with "the director's finding that the petitioner has
not, established that the beneficiary will be employed in either a primarily managerial or executive capacity.
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and
(Bj.of the Act. The AAO will first examine the alleged executive capacity of the beneficiary.
The description of duties provided on the L Supplement, previously .set forth above, is repeated her for
converuence..
Directs and establishes goals for the company and [is] responsible for all marketing and
promotion of [the] company in the computer consulting and translation business. [She] [w]ill
hire and fire employees, and supervise the employees and independent contractors and their
assignments. [She] [e]xercises wide latitude in discretionary decision-making[.] [She] [wJill
establish and oversee budget.
When compared to the definition of executive capacity, the duties of the beneficiary simply mirror the
regulation. For example, 8 U.S.C. § 1101(a)(44)(B)(ii) requires that 'a beneficiary "establishes the goals and
policies of the organization, component; or function," whereas 8 U.S.c. § 1l01(a)(44)(B)(iii) requires that a
beneficiary "exercises wide latitude in discretionary decision making." No independent evidence of exactly
what an average day in the workweek of the beneficiary consists of has been provided; More importantly,
however, the lack of specifics in the description of the beneficiary's duties precludes a finding that she is
employed primarily in an executive capacity. Reciting the beneficiary's -vaguejob 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 answer a critical question in this case: What does the beneficiary
primarily do on a daily basis? 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).
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating
the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co.,
SRC 04 0'63,50771
Page 7
Ltd. v. Sava, 724 F. Supp. at 1108, affd, 905 F. 2d 41; Avyr Associates, Inc ..v. Meissner, 1997 WL 188942 at
I '
*5 CS.D.N.Y.). Specifics are clearly an important indication of whether (beneficiary's duties are primarily
executive or managerial in nature; otherwise meeting the definitions wouldsimply be a matter of reiterating
the 'regulations. Fedin Bros. Co" Ltd. v. Sava, 724 F. Supp. 1103, aff'd; 905 F.2d 41. In this matter, the
'petitioner has merely repeated the language of the regulations, without showing-how the beneficiary functions
as ap executive during her engagement in the catering imd translation services.of the petitioner.
The: petitioner simultaneously claims that the beneficiary is engaged 'primarily in managerial duties, and
alleges for the first time on appeal that the beneficiary manages an essential function of the petitioner,
namely, the catering department. 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, i.e., identify the function with specificity, articulate the
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to
managing the essential function. 8 C.F.R. § 2l4.2(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 t9 provide services is not considered to be 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. 1~8)).
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. As
I, ...
discussed above, the description of the beneficiary's duties was vague and merely paraphrased the regulatory
definitions. While the description was compared above to the definition of executive capacity, the description
provided also emulates the definition of managerial capacity. For example, the regulation at 8 U.S.C. §
1I0il(a)(44)(A)(iii) provides that "if another employee or other employees are directly supervised, [the
beneficiary] has the authority to hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization) .... " The petitioner's description of the beneficiary's duties includes
"[she] will hire and fire employees, and supervise the employees and independent contractors and their
assignments." Once again, conclusory assertions regarding the beneficiary's employment capacity are not
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden
of proof Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108; Avyr Associates, Inc. v.Meissner,·1997 WL
188942 at *5. .
With regard to counsel's claim that the.beneficiary is a function manager, it should be noted that this claim is
made for the first time on appeal. Prior to appeal, the petitioner claimed that the beneficiary's duties included
hiring, firing, and overseeing staff members. 'However, since no staff members have yet been hired, it appears .
that the petitioner has changed its position in order to attempt to qualify the beneficiary for the benefit sought
under a different basis. On appeal, a petitioner cannot offer a new position to the beneficiary, or materially
change a position's title, its level of/authority within the organizational hierarchy, or the associated job
responsibilities. The petitioner must ~stablish that the position offered to the beneficiary when the petition
};
,
SR€ 04 063 50771
Page 8
was filed merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N
Dec. 248, 249 (Reg; Comm. 1978). A petitioner maynot make material changes to a petition in an effort to
make a deficient petition conform to Citizenship ahd Immigration Services (CIS) requirements. See Matter of
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 199'8).
Regardless, the AAO will review the beneficiary's eligibility for qualification under the classification of a
funbtion manager since it is clear that she was the petitioner's only employee at the time of filing. Generally,
when a beneficiary is the sole employee of a petitioner, it is presumed that she is thus required to directly
perform non-managerial duties essential to the petitioner's business. While performing non-qualifying tasks I
nec~ssary to. produce a product or service will not automatically disqualify the beneficiary. as long as those
task's are not the majority of the beneficiary's duties, the petitioner still has the burden of establishing that the
beneficiary is "primarily" performing managerial or executive duties. Section 1,01(a)(44) of the Act. Whether
the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has sustained its
~ , .
burden of proving that her duties are "primarily" managerial.
Inthe present matter, the petitioner fails to sufficiently document the, exact nature of the beneficiary's day-to­
day duties. The petitioner provides a generic list of the beneficiary's duties, yet without specifics, it is
uncertain exactly what the beneficiary does on a day:to-day basis. While the claim on appeal is that the
beneficiary manages the catering department, the petitioner fails to quantify the time the beneficiary spends
on this task. This failure, of documentation is important because catering services do not fall directly under
traditional managerial duties as defined in the statute. Absent evidence of other employees, it appears that the
beneficiary is primarily responsible for performing all catering tasks, such as preparing, serving, and
!
delivering food to clients. Without a clear and credible breakdown of the time spent by the beneficiary
performing these hands-on duties, the AAO cannot determine what proportion of her duties would be
managerial or executive, nor can it deduce whether the beneficiary is primarily performing the duties of a
function manager. See IKEA US, Inc. v. Us. Dept; ofJustice, 48 P. Supp. 2d 22, 24 (D.D.C. 1999).
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the
.' " i
requirements of serving in a managerial and executive capacity for L-1 classification because the company
was still considered to be in the start-up phase afte/ one and one-half years. Counsel further contends that
based on this decision, the one-year period is an u&ealistic time periodin which a petitioner can establish a
viable business. Counsel has furnished no evidence, to establish that the facts of the instant petition are
analogous to those in the unpublished decision. While 8 C.P.R. § 103.3(c) provides that AAO precedent
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not
similarly binding.
Despite counsel's protests, the regulation at 8 c.P.R. § 214.2(l)(3)(v)(C) allows the intended United States
operation one year within the date of approval of the petition to support an executive or managerial position.
There is no provision in CIS regulations that allows for an extension of this one-year period. If the business is
not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. Based on
the evidence submitted, it appears that absent evidence to show that the petitioner had hired a subordinate
staff to relieve the beneficiary from performing non-qualifying duties at the time of filing, it cannot be
determined that she functions in a primarily managerial qr executive capacity. As previously stated, an
SRC 04 06350771
Page 9
employee who primarily performs the tasks necessary to produce a product or to provide services is not
considered to be employed in a managerial or executive capacity. Matter of Church Scientology
International, 19 I&N Dec. at 604. The petitioner must establish that the position offered to the beneficiary
when the petition was filed merits classification as a managerial or executive position. Matter of Michelin
Tire Corp., 17 I&N Dec. at 249. The record is not persuasive in demonstrating that the beneficiary has been
or will be employed in a primarily managerial or executive capacity. For this reason, the petition may not be
approved. l
The,second issue in this matter is whether the petitioner has been doing business as required by the regulations
for the previous year. The regulation at 8 C.F.R. §214.2(l)(l)(ii)(H) defines the term "doing business" as "the
regular, systematic, and continuous provision of goods and/or se~ces by a qualifying organization and does not
inclpde the mere presence of an agent or office of the qualify~pgorganizatio~ in the United States and abroad."
,"
In this matter, the petitioner claimed that its initial business goals were to establish computer consulting services,
, . ~
but this plan was altered to focus primarily on catering services due to the "hard economy." The director denied
the petition, finding that the petitioner had failed to satisfy the regulatory requirements for doing business.
With the initial petition, insufficient evidence of the petitioner's business practices was submitted.
Consequently, in the request for evidence issued on February 27, 2'004, the director requested documentation
establishing that the petitioner had been doing business during the previous year as required by the
regulations. Specifically, the director requested that the (petitioner submit documentation such as dated
purchase orders, contracts, or sales agreements that established that the beneficiary had been providing goods.. .
and services during the previous year. In the response filed on May 26, 2004, the petitioner submitted a
variety of documentary evidence,including invoices, the beneficiary's food manager certification license, a
business card, a letter from a client verifying services received, and some bank statements.. The petitioner
further indicated that its business was now being operated/out of the beneficiary's residence, and that it did
j
not currently have a commercial lease. Based on this documentary evidence, as well as a statement outlining
the petitioner's business plan, the petitioner asserts that it has sustained its burden.
On review of the evidence submitted, the AAO concludes that the petitioner failed to demonstrate that it had
been doing business during the previous year. The record indicates that the beneficiary was granted a
one-year period of stay from December 15, 2002 to December 15, 2003 to open a new office. The record
I
further indicates that the petitioner would engage in computer' consulting and translation (invoices for some
translation services were submitted), but that it changed the cours~ of the business to focus primarily on
catering. There is, however, no indication of regular sales activity during this period. For example, a
sporadic sampling of invoices in the Spanish language, covering services for 2003, are submitted in support of
the petitioner's claim that it has been doing business. Also submitted is the beneficiary's business card and a
menu. The problem with this evidence, however, is twofold. First, the invoices do not identify the petitioner
as the vendor on,these invoices. Second, all documentation submitted is in Spanish and no translations have
been provided. Because the petitioner failed to submit certified translations of the documents, the AAO
cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3).
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. There is,
SRC 04 06350771
Page 10
therefore, insufficient evidence that sales were continuously made during the course of the beneficiary 's stay
in the United States.
Based on this limited information, it appears that the petitioner was not doing business as required by 8 C.F.R.
§ 2l4.2(1)(l4)(ii)(B). The AAO acknowledges the petitioner 's claim that it experienced difficult ies
establishing itself in the computer services industry andthat it turned to catering as a result. However , the. '
fact ' remains that there is insufficient evidence of a consistent provision of goods and services by the
petitioner to outside clients" during the period from December 2002 to December 2003. While the newly­
submitted documentation on appeal indicates that the petitioner has been providing computer and catering
services from August to October 2004, there is no indication that such regularity with regard to the provision
of the petitioner's goods took place during the fir~t year of operations, and further lacks any explanation or
documentation regarding other activities engaged in by the petitioner to promote its business during this ,
period. The fact that the petitioner did not supply evidence of any employees and that the beneficiary did not
receive a salary during this first year of operations, coupled with the lack of a commercial base for the
business , raise~ questions of the legitimacy of the petit ioner's claimed business operations .
<
As .previously stated , the regulation at 8 C.F.R : § 2l4.2(1)(3)(v)(C) allows the intended United States
operation one year within the date of approval of the pet ition to establish the new office. Furthermore, at the
1
time the petitioner seeks an extension of a new office petition , the regulations at 8 C.F.R. § 2l4.2(1)(14)(ii)(B)
require the petitioner to demonstrate that it has b~en doing business for the previous year. In the present
matter, the evidence submitted at the time of filing confirmed that the petitioner had not been conducting,
reg1.J1ar business as required . ' The fact that it recently began improving its sales after the expiration of the
beneficiary's initial stay does not entitle the petitioner to an extension of the visa classification requested , for
it does not change the fact that the petitioner failed to conduct business during the previous year. For this
additional reason, the petition may not be approved .
Beyond the decision of the director, the record reflects that the petitioner did not file the petition for an
I '
extension within the required time frame. The regulation at 8 C.F.R. § 214.2(1)(14)(i) provides, in pertinent
part, that a petition extension may be filed only if the validity of the original petition has not expired. In the
present case, the beneficiary's authorized period of stay expired on December 15,2003. However, the petition
for an extension of the beneficiary's L-IA status was filed on December 30, 2003 , fifteen days following the
expiration of the beneficiary's status. As the extension petition was not timely filed, the petition may not be
approved for this additional reason.
Additionally, the minimal documentation of the parent company's and the petitioner's ownership raises the
I
issue of whether,there is a qualifying relationship between and U.S. entity and a foreign entity pursuant to 8
C.F:R. § 214.2(1)(1)(ii)(G). The petitioner has submitted no evidence establish ing that the claimed owners of
the entities in fact own both entities as stated on the L Supplement. Without evidence of the ownership of
these entities , the claimed affiliate relationship cannot be established. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings .
Ma ~fer oj Soffici, 22 I&N Dec . at 165 . As general evidence of a petitioner's claimed qualifying relationship ,
stoc,~ certificates, the corporate stock certificate ledger, stock certificate registry, corporate bylaws , and the
minutes of relevant annual shareholder meetings must be examined to determine whether a stockholder
SRC 04 06350771
Pagel 1
maintains ownership and control of a corporate entity. Without full disclosure of all relevant documents, CIS
is unable to determine the elements of ownership and control. The petitioner has not submitted any such
evidence. For this additional reason, the petition may not 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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043.
The petition will be denied. for the above stated reasons, with each considered as an independent and
alternative basis for denial. 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.