dismissed L-1A Case: Gemstone Wholesale

id,enti~71ng data deletedto .':"
preventclearlyunwarran~;
invasionof personalpriv"Y.
lJ.s. Departm~nrOfHomelaO(.1 Security
20 Massachusetts Ave., N.W., Rm.A3000
Washington, DC 20529
u.s.Citiz~nship
and Immigration
Services
File: WAC 04 02351482 Office: CALIFORNIA SERVICE CENTER Date: MAY 03 ZII7
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. § llOl(a)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Ariy further inquiry must be made to that office.
~~?-$"'-'
Robe . Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 02351482
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 visa petition seeking to extend the employment of its president as an L­
IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § IIOI(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of California and is allegedly engaged in the import and wholesale of gemstones. 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 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, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
benefi'ciary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive,or
specialized knowledge capacitY-
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(l)(ii)(G) ofthis 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 preced'ing 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.
WAC 04 02351482
Page 3
The regulatjon at 8 C.F.R. § 2l4.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
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)(l)(ii)(G) of this section;
(8) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l)(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;
. f· .
(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 primary 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, 8 U.S.c. § I I01 (a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, ora department, subdivision, function, or component of
the organization;
(ii) supervises and contro'ls 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 seni<;>r 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 professiona1.
Section IOI(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B), defines the term "executive capacity" as an
WAC 04 02351482
Page 4
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.
Although the petitioner asserts on appeal that the beneficiary will be employed primarily as an executive, the
petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily 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,. Given the lack of clarity, the AAO will assume that the petitioner is asserting that
the beneficiary will be employed either as an executive or a manager and will consider both classifications.
The petitioner described the beneficiary's job duties in the Form 1-129 as follows: "Oversee the activities of
.. ~
the CompanY,hire & train employees." The petitioner also submitted a vague organizational chart and its
California wage reports indicating that the petitioner employed three people, including the beneficiary, in the
quarter immediately preceding the filing of the instant petition.
On March 17, 2004, the director requested additional evidence. The director requested, inter alia, a more
detailed organizational chart for the United States operation which describes the employees' job duties and
educational backgrounds; a more detailed description of the beneficiary's job duties; and· the most recent
California wage report for the petitioner.
In response, the petitioner submitted a letter dated April 26, 2004 in which it describes the beneficiary's duties
as follows:
[The beneficiary's] workday starts at approximately 9:00 am [sic]. His first order of business
is to review e-mail communications. He then normally meets with our operations manager to
discuss activities of the staff, sales projections, credit issues, [a]ccounts [p]ayable and
accounts receivable. This meeting normally takes anywhere from one and a half to three
hours depending on the amount of subjects to be covered that day.
)
The next hour o~ so is devoted to reviewing sales figures, potential contracts and other
documents relevant to the expansion of the Company.
These activities normally bring our president to lunch break. In the wholesale industry, it is
common for executives to meet business customers for lunch. Our president usually either
accompanies one of our" 1 employees or attends lunch individually with these customers.
Between the driving to and from lunch and the normal time of 1 to 1Y2 hours for lunch, this
WAC 04 02351482
Page 5
usually places our president back in around 2:30 to 3:00 p.m.. [sic]
From 3 p.m. to approximately 6:00pm [sic], our president is in his office returning phone
calls, and dealing with the companies [sic] many independent contractors including
accountants, bankers, lawyers and other professionals ..
Of course, this is a synopsis of his business activities and cannot and does not highlight or
anticipate the myriad of issues that occur on a daily basis in which he is the final arbiter and
ultimate decision maker.
Unfortunately, his day does not end at 6:00pm [sic). Because of the significant time
difference between [the] United States and India, he is often on the phone late at night
engaged in executive phone meetings concerning allotments and shipments generally.
The petitioner also submitted an organizational chart which' shows the beneficiary at the top of the
organization supervising a "manager,". who, in tum, supervises an "assorter," a secretary, and a sales
employee. The "manager" is described as being "in charge of day-to-day operations of company and sales"
and as having earned a degree at a foreign educational facility. The remaining workers are described as
working with gemstones, performing clerical work, and engaging in sales tasks.
Finally, the petitioner submitted a California wage report for the first quarter of 2004. Neither the 2004 wage
report nor the 2003 wage reports. submitted with the initial petition includes the sales employee identified in
the organizational chart. The petitioner does not offer an explanation for the sales employee's omission from
the wage reports.
On June 21, 2004, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
. .
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive.
Upon review, the petitioner's assertions are not persuasive.
Title 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 Citizenship and
Immigration Services (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. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. §, 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id.
WAC 04 023 51482
Page 6
The petitioner's description of the beneficiary's job duties has failed to establish 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 will do on a day-to-day
basis. For example, the petitioner describes the beneficiary as meeting with staff, reviewing documents,
meeting with customers, and placing telephone calls to service providers and contacts in India. However, the
petitioner does not specifically describe the substance of these meetings or telephone conversations and has
not established that such tasks are managerial or executive in nature. The fact that the petitioner has given the
beneficiary a managerial title and has prepared a vague job description which includes lofty duties does not
establish that the beneficiary will actually perform managerial duties.· Specifics are clearly an important
indication of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
Furthe~ore, many of the duties ascribed to the beneficiary appear to be non-qualifying ad~inistrative or
operational tasks which do not rise to the level of being managerial or executive in nature. For example, the
. petitioner states that the beneficiary will spend most of his time acting as a first-l~ne supervisor of non- .
professional workers (see infra), meeting with customers, and working with the petitioner's service providers.
However, as such duties constitute administrative or operational tasks, it cannot be cpnfirmed that he will be
"primarily" employed as a manager. To the contrary, it appears that the beneficiary will primarily perform
administrative or operational tasks. 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 sections101(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 (Corom. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart, wage reports, and job descriptions for the subordinate staff members,
the beneficiary appears to supervise a staff of three or four employees. However, the petitioner has not
established that any of the subordinate employees are primarily engaged in performing supervisory or
managerial duties. While the "manager" has been gi:ven a managerial title, the vague job description does not
establish that this employee is truly engaged in primarily performing supervisory or managerial duties.
Inflated job titles and artificial tiers of subordinate employees are not probative and will not establish that an
organization is sufficiently complex to support a managerial position. To the contrary, it appears that the
subordinate employees are performing the tasks necessary to produce a product or to provide a service, e.g.,
sales, clerical work, and gem sorting and grading. In view of the above, the beneficiary would appear to be
primarily a first-line supervisor of non-professional employees, the provider of actual services, or a
combination of both. A managerial employee must have authority over day-to-day operation~ 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.
.WAC 04 02351482
Page 7
Moreover, the petitioner has not established that the beneficiary will manage a professional employee. In
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced typein a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by the subordinate employee; The possession ofa bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In this matter, the petitioner has not established that a bachelor's degree is actually necessary
to perform the work of the "manager." First, the petitioner failed to establish that the foreign degree allegedly
earned by the "manager" is equivalent to a United States bachelor's degree. Second, the duties ascribed to the
"manager" are so vaguely described that it is impossible to discern whether a university degree is necessary
for the job. While the petitioner on appeal asserts that university degrees are generally required for.
"operations managers," an arbitrarily assigned job title is not probative in this matter. Absent a credible and
detailed description of the manager's duties, it has not been established that the manager is a professional
employee.
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial
. 1
capaCIty.
IWhile the petitioner has not clearly argued that the beneficiary will manage an essential functIon of the
organization, the record nevertheless wbuld not support this position even if taken. 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 demonstrate that the beneficiary
will manage ~the function rather than perform' the duties related to the.function. In this matter, the petitioner
has not provided evidence that the beneficiary will manage an essential function. The vague job description
fails to document what proportion of the beneficiary's duties would be managerial functions, if any, and what
proportion would be non-managerial.' Also, as explained above, the record establishes that the beneficiary is
primarily a first-line supervisor of non-professional employees and/or is engaged in performing non­
qualifying operational or administrative tasks. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties would be
.managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager.
WAC 04 02351482
Page 8
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
.statutory definition of the tenn "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)(44)(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 a subordinate 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 they "direct" the enterprise as the owner or sole
managerial employee .. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary willIbe acting primarily in an executive capacity. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day
basis. Moreover, as explained above, the beneficiary appears· to be primarily employed as a first-line
. supervisor and is perfonning tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity..
While section 101(a)(44)(C) of the Act requires CIS to take into account the reasonable needs of the
organization and its overall purpose and stage of development if staffing levels are used as a factor in
determining whether an individual is acting in· a managerial or executiv~ capacity, it. is nevertheless
appropriate for CIS·to consider factors such as a company's small personnel size, the absence of employees
who would perfonn the non-managerial or non-executive operations of the company, or a "shell company"
that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F.
Supp. 2d 7, 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 asserts in the organizational chart that it employs a sales employee, yet this employee does not
appear in the California wage reports. The petitioner offers no explanation for 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.
582,591-92 (BIA 1988)..
Accordingly, in this matter, the· petitioner has failed to establish that the beneficiary will be primarily
perfonning managerial or executive duties, and the petition may not be approved for that reason?
See lKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
2It is noted that the director in his decision relied, at least partly, on the job description in the undated letter
from the foreign entity submitted in response to the Request for Evidence. Upon review, it appears that this
. job description concerns the beneficiary's employment abroad and does not concern his employment in the
United States. Therefore, to the extent the director relied on this job description in concluding that the
petitioner failed to establish that the beneficiary will be employed primarily as an executive or manager in the
United States, the director's decision is withdrawn. Nevertheless, as explained above, the record still fails to
WAC 04 02351482
,Page 9
Beyond the decision of the director, the petitioner has failed to establish that it still has a qualifying
relationship with the foreign entity.
The regulation at 8 C.F.R. §2l4.2(l)(14)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(1)(ii)(G) of this section[.]
Title 8 C.F.R. § 2l4.2(i)(1)(ii)(G) defines a "qualifying organization" as a fi.rm, corporation, or, other legal
entity which "meets exactly one of the qualifying relationships specified in the defmitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defined in pertinent part as a corp~ration "of which a parent owns, directly or indirectly, more than
half of the entity and controls the entity."
In this matter, the petitioner, a corporation, asserts that it is 100% owned by the foreign employer. In support of
, this assertion, the petitioner submitted a stock certificate and organizational documents indicating that 100% of
the petitioner's stock had been issued to the foreign entity on June 20, 2002. The petitioner also submitted its
2002 Form 1120; U.S. Corporation Income Tax Return. However, most of schedule K to the Form 1120 was left
blank. As this schedule includes questions related to the petitioner's ownership and control, the petitioner's failure
to complete this schedule casts.doubt on its assertion that it is 100% owned by a foreign entity. Moreover, the
Form 1120 did not include a Form 5472, Information Return of a 25% Foreign-Owned U.S. Corporation or a
Foreign Corporation Engaged in a U.S. Trade or Business. As the petitioner' stock was allegedly transferredto
the foreign entity in 2002, it would have been obligated to complete this form in conjunction with the Form 1120. '
Therefore, the maimer in which the petitioner completed and apparently fil~d the Form 1120 directly contradicts
its assertion that it is 100% owned by the foreign employer. As explained above, 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 not established that it and the foreign entity are still qualifying organizations.
For this additional reason~ the petition may not be approved.
Beyond the decision of the director, the petitioner failed to establish that the beneficiary had been employed
abroad in a primarily executive or managerial capacity.
In response to the Request for Evidence, the petitioner submitted an organizational chart for the foreign
employer and an undated letter from: the foreign employer describing' the beneficiary's position abroad as
"export/financial manager." However, the job description is so vague that it is impossible to discern what the,
beneficiary did on aday-to-day basis. Moreover, a majority of the duties attributed to the beneficiary appear
establish that the beneficiary will be employed primarily in an executive or managerial capacity, and director
correctly denied the petition on that basis ..
WAC 04 02351482
Page 10
to have been administrative or operational tasks which do not rise to the level of being managerial or
executive in nature. For example, the beneficiary is described asa first-lipe supervisor of non-professional
workers, meeting with customers and suppliers, and "troubleshooting." These are not qualifying managerial
or executive duties.
Finally, the organizational chart is not persuasive III establishing that the beneficiary supervised and
controlled the work of other managerial, supervisory, or professional employees. Similar to the United States
entity, the petitioner purports that the beneficiary managed a subordinate "manager" who, in tum, supervised
the other employees. However, the vague job description for this subordinate manager fails to establish that
this worker was truly engaged in performing primarily managerial or supervisory duties. To the contrary, it
appears that all of the subordinate employees, including the "manager," were likely performing the tasks
necessary to produce a product or to provide a service. Therefore, the beneficiary appears to have been
primarily a first-line supervisor of non-professional employees, the provider of actual services, or a
combination of both.
Accordingly, the petitioner failed to establish that the beneficiary had been employed abroad in a primarily
executive or managerial capacity, and the petition may not be approved for this additional reason.
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291, of the Act, 8 U.S.C. § 1361.
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).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it 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. Here, that burden has not been met. Accordingly, the appeal will be
dismissed,
ORDER: The appeal is dismissed.