dismissed L-1A Case: Fashion Jewelry

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 0407951254 Office: CALIFORNIA SERVICE CENTER Date: JUl. Q 5 2001
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)(l5)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~bert P. Wiemann, ief
I Vministrative Appeals Office
www.uscis.gov
WAC 0407951254
Page 2
DISCUSSION: The Director, California 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 marketing director as
an L-lA nonimmigrant intracompany transferee pursuant to section lOl(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a sole proprietorship operating in the
State of California and is engaged in the sale of fashion jewelry. The petitioner claims that it is the branch
office of Michelle's Shellcraft located in Cebu, Philippines. The beneficiary was initially granted a one-year
period of stay to 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: (1) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) that there is a qualifying
relationship between the U.S. and foreign entities.
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 director's decision
suggests that he failed to review the petitioner's response to the request for evidence, and thus the petition was
"unfairly adjudicated." The petitioner submits a brief and documentary evidence in support of the appeal.
To establish eligibility for the L-l 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 (l)(l)(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.
(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
WAC 04 079 51254
Page 3
education , trammg , 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)(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) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined In
paragraph (l)(I)(ii)(H) of this section for the previous year ;
(C) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition ;
(D) 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
(E) Evidence of the financial status of the United States operation.
The first issue addressed by the director is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity under the extended petition.
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 ,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
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(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 nonimmigrant petition was filed on February 2, 2004. The petitioner indicated on Form 1-129 that the
beneficiary would continue to serve as marketing director, and stated that the U.S. company has four
employees. In a letter dated January 9, 2004, the petitioner described the beneficiary's duties as follows:
20% Research and evaluate lists for identifying prospective market segments for its
products; conduct feasibility studies; implement and apply appropriate strategies and
programs to increase business volume. Establish and maintain relationships with different
companies especially those with which the petitioner conduct [sic] business to ensure the best
and most advantageous deals for the Petitioner.
20% Establish formats for gathering data and surveys. Carefully analyze the market's
potential and collecting data on customer preferences as well as analyzing and gathering
opinions regarding company's line of products. Prepare current marketing and distribution
strategies based on analysis and prepare reports to refine and augment the company's present
approaches.
15% Identify and concentrate on prospective or untapped market sections or segments for
which the company's present and future products will be offered.
15% Develop long term marketing and business strategies on behalf of the company and
prepare forecasts and projections for emerging business cycle. Develop and implement a
plan whereby problems, complaints, feedbacks and other observations of clients and
customers can be coursed through and ultimately addressed and/or solved.
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15% Promote communication and cooperation among employees, leading to enhanced
motivation and improvement in the work climate as well as interact with management;
manage the advertising and public relations process and playa pivotal role in preserving and
enhancing our client base.
150/0 Direct and coordinate the activities of other marketing/sales staff to effectively
pursue the company's marketing and sales goals.
The petitioner submitted an organizational chart for the U.S. entity, which indicates that the beneficiary
reports to the general manager/owner, and supervises a sales manager, who in tum supervises an in-house
sales person. The organizational chart included brief job descriptions for each employee, and indicates that
the beneficiary develops marketing plans and programs for each product, directs promotional support,
provides marketing information by answering questions and requests; and achieves financial objectives by
preparing an annual budget, scheduling expenditures, analyzing variances, and initiating corrective actions.
On March 11, 2004, the director issued a four-page request for evidence, requesting extensive supporting
documentation for assertions made in the petition. In part, the director instructed the petitioner to submit a
more detailed description of the beneficiary's duties, and a copy of the petitioner's California Form DE-6,
Quarterly Wage and Withholding Report, for the last quarter of2003.
On May 18, 2004, the California Service Center received a one-page letter from the petitioner's bank,
confirming the account status for the company's account, and noting the persons authorized to access the
account. The response also included a partial copy of the director's request for evidence. The response was
mailed directly from the petitioner's bank.
On July 16, 2004, the director denied the petition. The director determined that the petitioner had not
established the beneficiary would be employed in a primarily managerial or executive capacity under the
extended petition. The director noted that the petitioner failed to respond to his specific requests for additional
evidence to establish the beneficiary's employment in a managerial or executive capacity. The director
determined that it appears the beneficiary would be primarily performing the marketing function, rather than
managing marketing activities for the petitioner.
On appeal, the petitioner asserts that it submitted a complete and timely response to the request for evidence
on May 14, 2004. The petitioner notes it is evident that from the director's decision that such evidence was
either never received or never reviewed. The petitioner submits a brief and 24 exhibits which it claims were
previously submitted. The petitioner summarizes the beneficiary's previously submitted job duties, and claims
that she is employed in a managerial capacity.
Upon review, the petitioner has not established that the beneficiary would be employed in a primarily
managerial or executive capacity under the extended petition. 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
WAC 04 079 51254
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performed by the beneficiary and indicate whether such duties are either in an executive or managerial
capacity. Id.
The petitioner's description of the beneficiary's duties, while lengthy, is too general and nonspecific to
establish how the beneficiary allocates her time on a day-to-day basis. For example, the petitioner's
statements that the beneficiary will "develop long term marketing and business strategies," "implement and
apply appropriate strategies or programs," "prepare current marketing and distribution strategies," "identify
and concentrate on prospective or untapped market sections or segments," "promote communication and
cooperation among employees," and "playa pivotal role in preserving and enhancing our client base," do little
to convey an understanding of the beneficiary's actual duties. 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 activities in the course of her 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).
Furthermore, portions of the job description suggest that the beneficiary is actively involved in performing
market research and promotional tasks that are clearly not managerial or executive in nature. The petitioner
states that the beneficiary will "research and evaluate lists for identifying prospective market segments,"
"conduct feasibility studies," "establish formats. for gathering data and surveys," "analyze the market's
potential and collect data on customer preferences," "analyzing and gathering opinions regarding the
company's line of products," "provide marketing information by answering questions and requests," and
"manage the advertising and public relations process." The petitioner does not indicate how the lower-level
employees would relieve the beneficiary from performing data collection, market research and analysis,
advertising or public relations functions, nor does it articulate why these duties, which appear to require a
substantial portion of the beneficiary's time, are managerial in nature.
The definitions of executive and managerial capacity have two specific requirements. 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). Although the petitioner indicated how the
beneficiary's time would be allocated among various broad responsibilities, the description as a whole fails to
adequately specify the duties to be performed by the beneficiary, such that they could be classified as
managerial or executive in nature. Accordingly, while the beneficiary may perform some managerial duties,
the evidence submitted is insufficient to establish that her role within the company is primarily managerial.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The director reviewed the position description and organizational chart submitted with the initial petition and
found the evidence insufficient to establish eligibility for the benefit sought. The regulation states that the
petitioner shall submit additional evidence as the director, in his or her discretion, may deem necessary. The
WAC 04 07951254
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purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12).
The 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). As noted by the director, no additional evidence relevant to the
beneficiary's employment capacity was received in response to the director's request.
The petitioner now claims that a voluminous response to the request for evidence was in fact submitted on
May 14,2004. The petitioner has not provided shipping receipts or other records to support this claim. 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 of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Regardless, upon review of the
evidence submitted on appeal, the petitioner simply re-submitted the same job description and organizational
chart that were submitted initially and already found to be deficient by the director.
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function
managers." See section 101(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. 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 petitioner claims that the beneficiary supervises a sales manager,
who in tum supervises a sales person, however, there is no evidence that the beneficiary has authority to hire
or fire employees or otherwise recommend personnel actions.
Furthermore, although one of the beneficiary's claimed subordinates has the title "sales manager," his duties
include processing sales orders and acknowledgements, sales invoices, receiving products, inventory control,
and shipping, duties which are not managerial in nature. The petitioner claims to employ an in-house sales
person subordinate to the sales manager, however, the record does not substantiate that this employee was
employed as of the date of filing. In the third quarter of 2003, the sales manager and sales person were both
paid wages of$3,510. In the fourth quarter of2003, the sales manager was paid $3,510, while the sales person
received only $1,170 in wages, or payment for one month's salary. The petitioner's internally prepared payroll
statements also show no payments to the sales person after October 2003. Accordingly, the petitioner has not
established that it actually employed the sales person, and the sales manager will not be considered a
managerial or supervisory employee for purposes of this analysis. Nor has the petitioner asserted that the sales
manager is employed in a professional capacity, or provided evidence that would support such a finding. The
petitioner has not established that the beneficiary qualifies as a "personnel manager" as set forth in the
regulations.
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
WAC 04 07951254
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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.N.S., 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. As discussed above, the petitioner has not sufficiently
specified the beneficiary's duties, identified a function managed by the beneficiary, or established the amount
of time the beneficiary devotes to managerial duties. Further, the limited information provided suggests that
the beneficiary performs all aspects of the marketing function, including non-qualifying duties.
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a factor
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into
account the reasonable needs of the organization, in light of the overall purpose and stage of development of
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing
levels of the petitioner. See 8 C.F.R. § 214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C)
allows the "new office" 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 does not have sufficient staffing after one year to relieve the beneficiary from
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an
extension.
The petitioner is a one-year-old company engaged in the import, wholesale and retail sales of fashion jewelry.
It claims to employ a general manager, a marketing director, a sales manager, and a sales person. The
evidence in the record indicates that the owner and general manager of the company does not participate in
the business on a full-time basis, as she filed her U.S. income tax returns as a non-resident. As discussed
above, the record does not contain evidence that the petitioner employed the sales person at the time the
petition was filed. Accordingly, the only full-time employees of the company are the beneficiary and the sales
manager. Notwithstanding the managerial job titles held by the beneficiary and her subordinate, the record
does not establish that the petitioner can reasonably operate an import and wholesale business, as well as a
retail store, with two to three managerial employees. The petitioner reasonably requires employees to
purchase and import goods, market, sell, package and ship the goods to wholesale customers, manage
inventory, set up store displays, handle retail customer transactions, and perform the day-to-day financial and
administrative duties associated with operating any business. Based on the evidence presented, the
beneficiary and her claimed subordinate would need to participate in these non-qualifying duties in order for
the business to remain in operation. In the instant matter, the petitioner has not reached the point that it can
employ the beneficiary in a predominantly managerial or executive position.
Based on the foregoing discussion, the record is not persuasive in demonstrating that the beneficiary would
be employed in a primarily managerial or executive capacity. The petitioner indicates that it plans to hire
additional managers and employees in the future. However, the petitioner must establish eligibility at the
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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 facts. Matter of Michelin Tire Corp., 17 I&N
Dec. 248 (Reg. Comm. 1978). Accordingly, the appeal will be dismissed.
The remaining issue addressed by the director is whether the petitioner has established that a qualifying
relationship exists between the petitioner and the beneficiary's previous overseas employer. To establish a
"qualifying relationship" under the Act and the regulations, the petitioner must show that the beneficiary's
foreign employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch"
offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the
Act; 8 C.F.R. § 214.2(1).
The pertinent regulations at 8 C.F.R. § 214.2(1)(1)(ii) define the term "qualifying organization" and related
terms as follows:
(G) Qualifying organization means a United States or foreign firm, corporation, or other
legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate or subsidiary specified in
paragraph (1)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not
required) as an employer in the United States and in at least one other
country directly or through a parent, branch, affiliate or subsidiary for the
duration of the alien's stay in the United States as an intracompany
transferee [.]
* * *
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.
(J) Branch means an operating division or office of the same organization housed in a
different location.
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact
controls the entity.
(L) Affiliate means
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(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the
same share or proportion of each entity.
The petitioner claims to be a branch office of the foreign entity and states that both entities are sole
proprietorships with the same ownership. The director denied the petition noting that the petitioner had not
provided probative evidence of the establishment of a branch office in the United States.
In defining the nonimmigrant classification, the regulations specifically provide for the temporary admission
of an intracompany transferee "to the United States to be employed by a parent, branch, affiliate, or
subsidiary of [the foreign firm, corporation, or other legal entity]." 8 C.F.R. § 214.2(l)(1)(i) (emphasis added).
The regulations define the term "branch" as "an operating division or office of the same organization housed
in a different location." 8 C.F.R. § 214.2(l)(1)(ii)(J). CIS has recognized that the branch office of a foreign
corporation may file a nonimmigrant petition for an intracompany transferee. See Matter of Kloetti, 18 I&N
Dec. 295 (Reg. Comm. 1981); Matter ofLeblanc, 13 I&N Dec. 816 (Reg. Comm. 1971); Matter ofSchick, 13
I&N Dec. 647 (Reg. Comm. 1970); see also Matter ofPenner, 18 I&N Dec. 49, 54 (Comm. 1982)(stating that
a Canadian corporation may not petition for L-IB employees who are directly employed by the Canadian
office rather than a United States office). When a foreign company establishes a branch in the United States,
that branch is bound to the parent company through common ownership and management. A branch that is
authorized to do business under United States law becomes, in effect, part of the national industry. Matter of
Schick, supra at 649-50.
Probative evidence of a branch office would include the following: a state business license establishing that
the foreign corporation is authorized to engage in business activities in the United States; copies of Internal
Revenue Service (IRS) Form 1120-F, U.S. Income Tax Return of a Foreign Corporation; copies of IRS Form
941, Employer's Quarterly Federal Tax Return, listing the branch office as the employer; copies of a lease for
office space in the United States; and finally, any state tax forms that demonstrate that the petitioner is a
branch office of a foreign entity.
The AAO concurs with the director's finding that the petitioner did not establish the claimed branch
relationship. The evidence of record demonstrates that the foreign entity and the U.S. entity are both sole
proprietorships owned by the same individual. While common ownership and control by a single individual
would typically establish an affiliate relationship, the AAO emphasizes that it is fundamental to this
nonimmigrant classification that there be a United States entity to employ the beneficiary. In order to meet
the definition of "qualifying organization," there must be a United States employer. See 8 C.F.R. §
214.2(l)(l)(ii)(G)(2). The petitioner has submitted evidence that the U.S. business is owned by a Filipino
national who is identified as a non-resident alien for income tax purposes. A sole proprietorship is a business
in which one person operates the business in his or her personal capacity. Black's Law Dictionary 1398 (7th
Ed. 1999). Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual
proprietor. See Matter of United Investment Group, 19 I&N Dec. 248, 250 (Comm. 1984). As in the present
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Page 11
matter, if the petitioner is actually a non-resident alien, with no authorized branch office of the foreign
employer or separate legal entity in the United States, there is no U.S. entity to employ the beneficiary and
therefore no qualifying organization. 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).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if he or she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds.
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).
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.