dismissed L-1A Case: Flower Import/Distribution

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20 Massachusetts Ave., N.W., Rm. A3000
Washington.DC 20529 .
us, Qitiz~nship
and Imrn.igrati()n
Services .
File: WAC 04 084 50309 Office: CALIFORNIA SERVICE CENTER Date:. :MAR 1) 6 Z007
IN RE: Petitioner:
Beneficiary:
. Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) ofthe Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your .c,ase. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
_.~---~
~~:::::.::==::--7'-~' ,
RooerrP. WIemann, ChIef
Administrative Appeals O~fice ..
.....
WAC 04 084 50309
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is nowbeforethe Administrative Appeals Office (AAO) on appeal. The AAO will dislTlissthe appeal.
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as its vice
president/marketing director as an L-I A nonimmigrant intracompany transferee pursuant to section
101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.c. § I I01 (a)(l5)(L). The petitioner is
a corporation organized under the laws of the State of California and is allegedly a flower importer and
distributor. The petitioner claims a qualifying relationship as a subsidiary of . of
Ecuador. The petitioner seeks to employ the beneficiary for two years. '. , ,
The director deriied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity:
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 to the petitioner asserts that the director
erred by denying the .petition on the grounds ·statedbecause the director did not ask for a more detailed
description of the beneficiary's proposed duties in the Request for Evidence dated March 22, 2004. Counsel
submits a brief in support of the appeal, which includes a description of the beneficiary's proposed duties, and
asserts that this, description establishes that the beneficiary will be employed primarily as a "function"
manager for the petitioner.
, '
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. It) 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 thatthe 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
WAC 04 084 50309
Page 3
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher 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 primary issue inthe 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, 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
(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 lOl(a)(44)(B) of the Act, 8 U.S.C. § 'llOl(a)(44)(B), defines the tenn' "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.
In the initial petition, the petitioner does not clarify whether the beneficiary is claiming to be primarily
WAC 04 084 50309
Page 4
engaged in managerial duties under section 101(a)(44)(A) of the Act or primarily executive duties under'
section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid.
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and amanager, it must establish that the beneficiary meets
.each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager. While the petitioner' appears to have narrowed its argument on appeal by claiming that the
beneficiary will manage an essential function of the organization, the AAO will adjudicate the appeal as if the
petitioner is asserting that the beneficiary will be employed primarily in either a managerial capacity"or'an
, ,
executive capacity.
In a letter dated January 28, 2004 appended to the initial Form 1-129 petition, the petitioner described the
beneficiary's proposed duties as follows:
In this position of Marketing Manager, [the beneficiary] will establish and manage [the]
marketing department. He has responsibility for procurement of staff,' delegation of tasks and" ,
positions to the staff members, and outside marketing researchers and: other media
professionals as the business develops. The staff members will be his direct subordinates.
He will be responsible for directing and supervising the daily operation of our marketing
department while maintaining an active liaison relationship with the Marketing Department
of the Ecuador parent company to ensure worldwide consistency in product labeling and
advertising.
The petitioner also provided a 2004 organizational chart placing the beneficiary on the same level as other
"vice presidents" reporting directly to the president. The beneficiary is also portrayed as supervising a sales
assistant and three "route sales" employees.
On March 22, 2004, the director requested additional evidence. The director requested the following
evidence establishing that the beneficiary will be employed primarily in an executive or managerial capacity:
(1) an organizational chart for the United States operation which includes job duties and educational levels for'. .. .
those employees supervised by the beneficiary; (2) wage reports for the petitioner's employees (both Forms
941 and California Forms DE-6); and (3) a payroll summary.
In response, counsel to the petitioner provided a job description for the beneficiary materially identical to the
description appearing in the January 28,2004 letter. Counsel also provided a 2003 organizational chart which
differs substantially from the 2004 chart appended to the initial petition. Not only does the 2003 chart fail to
include a "marketing department," it shows that the beneficiary was apparently employed as a "route sales"
employee for the petitioner. According to the record, the beneficiary was admitted to the United States on
August 9, 2003 on a B-IIB-2 visa.
Counsel to the petitioner did not provide any job descriptions for beneficiary's prospective subordinates nor
did he identify their educational levels. Also, despite the director's specific request, counsel did not provide
.any of the requested wage reports (Forms 941 or Forms DE-6) for the petitioner's employees.
.' ~.
WAC 04 084 50309
Page 5
On August 5, 2004,~he director denied the petition. The director detennined that the petitioner did not
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, counsel to the petitioner asserts that the director erred by denying the petition on these grounds
because the director did not ask for a more detailed description of the beneficiary's proposed duties in the
Request for Evidence dated March 22, 2004. Counsel submits a brief in support of the appeal, which includes
an uncorroborated description of the beneficiary's proposed duties, and asserts that this description establishes
that the beneficiary will be employed primarily as a "function" manager for the petitioner.
Upon review, petitioner's assertions are not persuasive.
. ,
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 2l4.2(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.· The petitioner must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
managerial. A beneficiary may not claim to be employed as ahybrid "executive/manager" and rely on partial
sections of the two statutory definitions. If the petitioner is indeed representing 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 executive and the statutory definition for manager.
As a threshold matter, while counsel to the petitioner attempted to provide a more detailed job description for
the beneficiary on appeal, the AAO will consider only the job duties provided by the petitioner in the initial
petition and in response to the request for evidence. First, a petitioner cannot on appeal 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 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. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes
to a petition in an effort to make a deficient petition conform to Citizenship and Immigration Services (CIS)
requirements. See Matter of Izummi, 22 J&N Dec. 169, 176 (Assoc. Comm. 1998). Second, the new job
description was provided by counsel in his brief and was not corroborated by any evidence. Theunsupported
statements of counsel on appeal are not evidence and thus are not entitled to any evidentiary weight. See INS
v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).
Therefore; only the original job description will be considered.'
IOn appeal,counse1 asserts that "it is only fair and appropriate" to permit him to materially supplement the
beneficiary's job description on appeal because the director did not ask for a more detailed description of the, .' .,
.beneficiary's proposed duties in. the Request for Evidence. However, the fact that the director did not
specifically request a more detailed job description· in his Request for Evidence is of no consequence. The
director did request additional evidence establishing that the beneficiary will be employed primarily in an
executive or managerial capacity including: (1) an organizational chart for the United States operation which
WAC 04 084 50309
. Page 6
The petitioner has failed to prove that the beneficiary will act in a "managerial" capacity. In support of its
petition, the petitioner has provided a vague and nonspecific description of the beneficiary' s duties that fails
to demonstrate what the beneficiary does on a day-to-day basis. For example , the petitioner states that the
beneficiary will "establish and manage the marketing department," will supervise the department's daily
operation , and will delegate tasks to staff members. However , the petitioner provides no details regarding
what tasks will be delegated and what departmental daily operations will be managed . Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in .
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Specifics
are clearly an important indication of whether a ben~ficiary'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. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
The petitioner also failed to establish 'that the beneficiary will supervise and control the work of other
supervisory, professional , or managerial employees , or that he will manage an essential function within the
organization. The petitioner has provided no job descriptions for its subordinate employees; therefore , it
cannot be determined whether these employees are supervisory, professional, or managerial employees. In
fact, the petitioner has provided no wage information for its employees whatsoever; therefore, it cannot be
determined whether the petitioner even has any employees for the beneficiary to supervise. The beneficiary
would appear to be a first-line supervisor, the provider of actual services , or a combination of both. 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. See sections 101(a)(44)(A) and
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see
also Matter of Church Scientology International, 19 I&N Dec . 593, 604 (Comm . 1988). A managerial or
executive employee must have authority over day-to-day operations beyond the level normally vested in a
first-line supervisor, unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see
also Matter of Church Scientology International, 19 I&N Dec. at 604. There is no evidence in the record
establishing that the subordinate employee(s) relieve the beneficiary of performing non-qualifying duties, and
the petitioner failed to provide any details regarding the subordinate employees which could establish that
' .
includes job duties and educational levels for those employees supervised by the beneficiary; (2) wage reports
for the petitioner's employees (both Forms 941 and California Forms DE-6) ; arid (3) a payroll summary. The .
petitioner chose to provide limited payroll information and an incomplete organizational chart. The petitioner
chose not to provide wage reports or information regarding the subordinate employees. As explained in the
decision , the director concluded that the evidence pro vided by the .petitioner failed to establish that the
.beneficiary will be employed in a managerial or executive capacity. Moreover , the director specifically
mentioned the petitioner's failure to provide requested evidence in rendering his decision. The petitioner was
put on notice of required evidence and given a reasonable opportunity to provide it for the record before the
visa petition was adjud icated. 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).
WAC 04 084 50309
Page 7 ", '
they are professionals ? Therefore, the record does not prove that the: beneficiary will be acting in , a
managerial capacity.
On appeal , ~ounsel to th~ petitioner ,specifically asserts :for the firsfti~e 'that the beneficiary manages an
essential functi~n of the 'organization. However , the record does not support thisposition. 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. 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 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 .dernonstrate that the beneficiary
, manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary ~anages , an essential function . rne petitioner 's .vague job
description , and even the job description provided by counsel in his appellate brief, fail. to document what
, proportion .of the beneficiary's duties would be managerial functions imd what proportion would be non­
managerial. Absent a clear and credible 'breakdown .of the time spent b y the .beneficiary performing his '
duties, as well as a clear explanation of the dutie s, the AAo cannot 'determine ~hat proportion of his duties
would be managerial , 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 F. Supp, 2d 22 , 24(D.D~C. 1999).
Similarly, the petitioner has failed ~o prove that the beneficiary will act in an "executive" capacity. The
statutory definition :of the term "executive capacity" focuses on a person's elevated position within a complex
'. . organizational hierarchy , including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(4.4)(B) of.the Act. Under the statute, a beneficiary must
have the ability to "direct ,'the management" and "establish the goals and policies" of that organization.
inherent to the definition , the organization must have .asubordinate level 'of employees for the beneficiary to
direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
" the day-to-day operations of the enterprise. An individual will not be deemed ,an executive under the statute
simply because they have an executive title or because the y "direct" the enterprise as the owner or sole
managerial 'employee . The 'beneficiary must also e~erci se "wide latitude in discret ionary decision mak ing"....
2 ' ' . . ' .' . , . ' ".
In-evaluating whetherthebeneficiary manages professional employees , the AAO must evaluate whether the
s~bordinate positions require a baccalaureate degree-as a minimum for entry into the , field of endeavor.
Section 101(a)(32) of the Act , 8 V.S.c. § 1101(a)(32) , states that "[t]he term profession shall include qut not
be limited to architects , engineers. ilawyers, physicians , surgeons, and teachers in elementary orsecondary
. schools, colleges, academies , or seminaries." The term "profession" contemplates knowledge or learning, not
, merely skill, of an ad vanced type in a given field ,gained by a prolonged course of specialized instruction and
'study of at "least baccalaureat 'e level, which is a , realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec . 81T (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec . 686 (D.D. 1966). ' '
WAC 04 084 50309
Page 8
and receive only' "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." !d. As indicated above, the petitioner has failed to prove that the
beneficiary, who is allegedly managing a few employees who are apparently engaged in providing services to
customers, will be acting primarily in an executive capacity., '
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-exec~tive operations of the company, Of a "shell company" that does not conduct business.
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. .Supp. 2d7, 15 (D.D.C. 2001).
The size of a company may be' especially relevant when CIS notes discrepancies in the record and fails to
believe that the facts asserted are true. Id. In this matter, the petitioner has provided two organizational
charts from two different years which are materially different. While this is not necessarily problematic, both
charts sho~ the beneficiary serving in vastly different positions. The 2003 chart lists the beneficiary as a
"sales route" employee reporting to both a sales assistant and the vice president of sales and marketing.
According to the record, the beneficiary was admittedto the United States on August 9, 2003 on a B-l/B-2
visa. The petitioner's ability to employ the beneficiary given both his B-2 visitor for pleasure admission status
and his apparent contemporaneous employment by the foreign entity was not explained. Moreover, the 2004
chart incredibly elevates the beneficiary from "sales route" to marketing director, creating an entirely new
department for the beneficiary to supervise and placing him in' a supervisory position over both the other
, "sales route" employees and th~ sales assistant to whom he used to report. In view of the above, the
petitioner's description of the beneficiary's duties and prospective employment is simply not credible. Doubt
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and
sufficienc?,ofthe remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582,
591 (BIA 1988).
Accordingly, the petitioner has not established that the 'beneficiary will be employed in a primarily managerial
or executive capacity as required by 8 C.F.R. § 214.2(1)(3).
Beyond the decision of the director, the record contains insufficient evidence to establish that the overseas
company employed the beneficiary for one continuous year within the three years preceding the filing of the
petition and that his employment was primarily in a managerial, executive, or specialized knowledge capacity
as required by KC.F.R. § 214.2(l)(3)(iii) and (iv).
The letter dated January 28,2004 appended to the initial petition describes the beneficiary's overseas duties as
follows: "[The beneficiary] held a top marketing director position with, [the foreign entity] from January 2000
through August, 2003." The petitioner provided no other details.
On March 22,2004, the director requested additional evidence. Specifically, the director requested a more
detailed description of the beneficiary's duties abroad, an organizational chart for the foreign entity, and
information regarding the other employees of the foreign entity. In response, the petitioner failed to provide
further job descriptions for the beneficiary or for the foreign entity's other employees. The petitioner did
provide an organizational chart showing the beneficiary supervising two employees and reporting to both a
manager and a president.
WAC 04 084 50309
Page 9
, ,
Upon review, the: petitioner did not establish that the beneficiary was employed for one continuous ,year , '
within the three ,years ' preceding ,the filing of the petition and that his employment was primarily in a
managerial, executive , or specialized knowledge ,capac ity. The peti tioner has failed to provide any
substantive job description for the beneficiary , has failed to describe the dutie s of the two subordinate
employees in Ecuador , and has failed to provide any evidence of past employment overseas. Therefore, the
petitioner may not be approved for this additional reason.
Beyond the dec ision of the director, a related issue is whether the petitioner has established that it has a
qualifying relationship with the foreign entity.
The regulation at 8 C.F.R. §214.2(1)(3)(i) states that a petition shall be accompanied by:
(A) 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
sect ion],]
8 C .F.R. §,214.2(i )( I )(ii)(G) defines a "qualifying organization" as a firm , corporation , or other legal,entity
which "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," A "subsidiary" is defined , in part, asa legal entity,
"of which a pare~t owns, directly or indirectly, more than half of the entity and controls the entity."
The regulation and case law confirm that owner ship and control are the factors that must be e xamined in
determining whether a qualifying relationship exists between United States and for eign entities for purposes
of this visa class ificat ion. Matter ofChurch Scientology International , 19 I&N Dec . 593(BiA 1988); seealso "
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986) ; Matter ofHughes, 18 I&N Dec. 289
,(Comm. 1982). In the context of'.this visa petition, ownership refers to the direct or indirect legal right of
possession of the assets of an entity with full power and authority to control; control means the direct or
indirect legal right .and authority to direct the establishment , management , and operations of an entity . Matter
of Church Scientology International, 19 I&N Dec. at 595 .
In the initial Forni 1-129 petit ion, the petitioner asserts that it is 100 % owned by the foreign entity in Ecuador
thus , if true , establishing that itis a 'subsidiary" -In support, the petitioner provided articles of incorporation
authorizing 1 million shares of stock , a stock certificate issuing 10,000 shares to the foreign entity , evidence
that the stock issuance was reported to the State of California, and organizational minutes. The petitioner also
provided a copy of the petitioner's president's 2002 IRS Form 1040, Schedule C, showing that the president
reports the petitioner's income on his personal tax return.
Upon review , the petitioner has not established that it has a qualifying relationship with the foreign employer.
First , the petitioner lias provided insuffici~i1t evidence to establish the ownership and control of the United
States operation . As general evidence of a petit ioner 's claimed qualifying relationship , stock certificates alone
are not sufficient evidence to determine whether a sto ckholder maintains ownership and control of a corporate
. ' . ·
WAC 04 084 50309
Page 10
entity. The corporate stock certificate ledger, stock certificate registry, and corporate bylaws must also be
examined to determine the total number of shares issued, the exact number issued to the shareholder, and the
subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning company
must disclose all agreements relating to the voting of shares, the distribution of profit, the management and
direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens
Medical Systems, Inc., 19 I&N Dec. 362. Here,the petitioner has provided only a stock certificate and
organizational minutes to establish ownership and control. Without full disclosure of all these. relevant
documents, CIS is unable to determine the elements of ownership and control.
Second, the petitioner's president's reporting ofthe petitioner's income on his own Form 1040, Schedule C, is
inconsistent with the petitioner's assertion that it is 1,00% owned by a foreign company. The president of the
petitioner could only report the petitioner's income on his Form 1040 if he was the owner ofthebusiness.
The petitioner does not attempt to explain this serious inconsistency in the record. 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. at 591-92.
Accordingly,. the petitioner has failed to establi~h that it has a qualifying relationship with the foreign .
employer, and the petition may not be approved for this additional reason.
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, 345F.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·ade novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAOdenies a petition on multiple alternative grounds, a plaintiff can
succeed. on a challenge only ifit is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
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. Accordingly, the
appeal will be dismissed. .
ORDER: The appeal is dismissed.