dismissed L-1A Case: Gemstone Wholesale

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacj 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
File: WAC 08 2 16 5 1848 
 Office: CALIFORNIA SERVICE CENTER 
 Date: 
 AUG 12 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 l(a)(I 5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
ting Chief, Administrative Appeals Office 
WAC 08 216 51848 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 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 employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. fj 1101(a)(15)(L). The petitioner, a California corporation, states that it intends to engage in the 
import and wholesale of precious and semi-precious gemstones. The petitioner claims to be a subsidiary of 
Milsi Gems Co. Ltd., located in Bangkok, Thailand. The petitioner seeks to employ the beneficiary as the 
president and chief executive officer of its new office in the United States for a period of one year. 
The director denied the petition, concluding that the petitioner failed to establish that it has a qualifying 
relationship with the foreign entity. The director acknowledged the petitioner's submission of a stock 
certificate indicating ownership of the U.S. company's shares by the foreign entity, but found insufficient 
evidence that the foreign entity had actually purchased the shares. 
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 for the petitioner asserts that the petitioner 
submitted sufficient evidence to establish the claimed parent-subsidiary relationship between the foreign and 
United States companies, including evidence that the foreign entity transferred money to the petitioner's bank 
account in exchange for the stock issued. Counsel submits a brief and additional evidence in support of the 
appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(a)(15)(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. 9 214.2(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. 
WAC0821651848 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher 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. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(1) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The sole issue addressed by the director is whether the petitioner established that it has a qualifying 
relationship with the beneficiary's foreign 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 10 1 (a)(15)(L) of the Act; 8 C.F.R. 5 2 14.2(1). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzjjing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
WAC08216 51848 
Page 4 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(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. 
(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 
(I) 
 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 indicates that it is a wholly-owned subsidiary of Milsi Gems Co. Ltd. located in Bangkok, 
Thailand. The petitioner stated in a letter dated July 21, 2008 that "the parent company has transferred 
$40,000 in capital for start-up operations," of the U.S. company. 
In support of the petition, the petitioner submitted the following documentation: 
A copy of the U.S. company's articles of incorporation filed with the California 
Secretary of State on April 1, 2008, which indicate that the company is authorized to 
issue 10,000 shares of common stock. 
A copy of the U.S. company's by-laws and partial copy of the minutes of the 
company's organizational meeting. 
WAC 08 216 51848 
Page 5 
A copy of the U.S. company' stock certificate number one, indicating that Milsi Gems 
Co. Ltd. was issued 1,000 fully-paid shares on July 1, 2008. The stock certificate 
indicates on its face that the company is authorized to issue 10,000 shares of common 
stock at no par value. 
A copy of the U.S. company's stock transfer ledger indicating that 1,000 shares of 
stock were issued to Milsi Gems Co. Ltd. on July 1, 2008. The stock ledger does not 
indicate the amount of consideration paid in exchange for the shares. 
Copy of a Bank of America bank statement dated June 17, 2008, indicating that a wire 
transfer in the amount of $40,000.00 was credited to the petitioner's account on that 
date. The originator of the funds is listed as "Milsi Gems Co. Ltd." The payment detail 
states: "Purchase order for goodslRecNr 550 South Hill Street, Los Angeles, CA 
90013." 
A copy of "Notice of Transaction Pursuant to Corporations Code Section 25102(f) 
(Electronic Version)" which indicates that the petitioner issued common stock valued 
on July 25,2008 in exchange for $10,000 in cash. 
The director issued a request for additional evidence (RFE) on September 25, 2008, in which he requested, 
inter alia, additional evidence to establish the existence of a qualifying relationship between the petitioner and 
the foreign entity. With respect to the formation of the new office, the director requested minutes of the 
meetings for the foreign entity to illustrate the discussions to form the new entity, and copies of feasibility 
studies and business plans for the new office. The director also requested evidence to establish the ownership 
of the foreign entity. 
In response to the director's request, the petitioner submitted a letter dated November 26,2008 from - 
general manager of Milsi Gems Ltd., who indicated the foreign entity's desire to employ the beneficiary 
as president of its U.S. subsidiary. The foreign entity stated that it had already transferred $40,000 to the 
subsidiary's account to cover start-up costs and payroll. The petitioner also submitted a business plan which 
includes numerous references to Milsi Gems as its parent company. 
The director denied the petition on December 16, 2008, concluding that the petitioner failed to establish that 
the U.S. company and foreign entity have a qualifying relationship. The director acknowledged the 
petitioner's submission of its stock certificate to document that Milsi Gems owns 1,000 shares in the U.S. 
company, but found that "the petitioner has provided no evidence that the parent company actually purchased 
the shares." The director further found that the petitioner's Notice of Transaction Pursuant to Section 
25 102(f) was not signed by either the petitioner or its representative, and therefore is not valid. 
The director also noted that evidence to establish that the foreign entity actually established the new 
subsidiary office would include "documentation to establish that the claimed parent company actually formed 
the subsidiary and funded the start-up expenditures," and copies of stock purchase agreements, subscription 
agreements, corporate by-laws, minutes of relevant shareholder meetings, or other legal documents governing 
the acquisition of the ownership interest." The director concluded that "the issuance of a piece of paper titled 
'stock certificate' is not conclusive as to whether a qualifying relationship exists between a petitioner and a 
foreign parent company." 
WAC0821651848 
Page 6 
On appeal, counsel for the petitioner objects to the director's conclusion that the petitioner submitted "no 
evidence" of the claimed qualifying relationship other than the company's paper stock certificate. Counsel 
emphasizes that the petitioner also submitted a copy of its stock ledger, evidence of a funds transfer from the 
foreign entity to the U.S. company's account, and the Notice of Transactions Pursuant to Corporations Code 
Section 25102(f) filed electronically with the California Commissioner of Corporations, evidencing a total 
money offering of $1 0,000.00. 
Counsel contends that, although the director issued a lengthy request for evidence, she did not specifically 
request that the petitioner submit evidence that the parent company actually purchased the shares. 
Nevertheless counsel asserts that the $40,000 transferred to the petitioner's account documents that such a 
purchase took place. Counsel also emphasizes that the petitioner submitted an original letter from the foreign 
entity acknowledging that it seeks to transfer the beneficiary to its U.S. subsidiary, and a business plan which 
identifies the parent-subsidiary relationship. Counsel asserts that "no other persons or entities own any 
additional shares." 
In support of the appeal, the petitioner submits a signed copy of its Notice of Transaction Pursuant to 
Corporations Code Section 25 102(f), bearing the signature of the attorney who filed the form electronically as 
the petitioner's representative. Counsel also states that the "petitioner at this time is submitting a copy of its 
complete corporate minutes which at Page 9 evidence what is stated on the stock certificate, the stock ledger, 
and the 25 102(f) filing; that Milsi Gems Co., Ltd. purchased 1000 shares of stock for a price of $1 0,000 paid 
in cash only." 
The petitioner attaches seven pages of material on appeal, none of which appears to be the "Page 9" referred 
to by counsel. The first two pages, the Minutes of Organizational Meeting previously submitted, are 
numbered 19 and 20. The petitioner also submits a copy of page 23 from its corporate records, an acceptance 
of appointment as director signed by the beneficiary on June 3, 2008, which was also previously submitted. 
The petitioner submits, in between pages 20 and 23, four un-numbered pages, ostensibly from the minutes of 
the organizational meeting, addressing: the company's form of share certificate; a resolution authorizing the 
president or vice president to pay organizational expenses; a resolution regarding the accounting year; a 
resolution regarding the principal office location; a resolution authorizing the president and vice president as 
officers authorized to sign contracts and obligations; a resolution regarding the issuance of shares under 
limited offering exemption; and finally, a resolution to issue 1,000 of the company's 10,000 shares to Milsi 
Gems Co. Ltd. in exchange for consideration of $10,000. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the petitioner and 
the foreign entity have a qualifying relationship. 
Although the appeal will be dismissed, the AAO concurs with counsel that the director failed to acknowledge 
certain evidence that is relevant to this issue. The petitioner did not merely submit a stock certificate and an 
electronic copy of its Notice of Transaction Pursuant to Corporations Code Section 25012(f) in support of the 
petition. Specifically, counsel emphasizes that the petitioner submitted evidence of a wire transfer from the 
foreign entity to the U.S. company's account as evidence that the foreign entity paid for the 1,000 shares 
issued. 
. WAC 08 216 51848 
Page 7 
While the petitioner submitted evidence that it received a wire transfer from the foreign entity in the amount 
of $40,000 on June 17, 2008, it has not been established that the purpose of the wire transfer was to pay the 
petitioner $10,000 for the issued stock or to hnd the U.S. company's start-up costs. The wire transfer receipt 
indicates on its face that the money was transferred in reference to: "Purchase order for goods/rec/yr 550 
South Hill Street, Los Angeles, CA 90013." If the funds were transferred in connection with a stock purchase 
and/or capital investment, it is reasonable to expect such purpose to be reflected on the payment detail. The 
petitioner has not submitted an explanation to resolve this discrepancy. The letter from the foreign entity 
stating that it transferred $40,000 to pay for start-up costs is insufficient in light of the notation on the wire 
transfer receipt indicating that the money was transferred for a different purpose. 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 of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The evidence submitted prior to the adjudication of the petition did not specifically indicate the amount paid 
by the foreign entity in exchange for the 1,000 shares of stock. The stock transfer ledger does not indicate the 
consideration paid in exchange for the shares issued, and none of the corporate organizational documents 
previously submitted addressed the issuance of the petitioner's stock to the foreign entity. 
The AAO acknowledges the submission of the petitioner's "complete corporate minutes" on appeal; however, 
as noted above, the newly submitted pages contain some irregularities that raise questions regarding their 
probative value. The AAO notes that other corporate documents submitted, specifically, the company's 
bylaws, are numbered in the lower right-hand corner of each page. The by-laws are numbered from pages 26 
through 38, and, as noted above, the first two pages of the company's minutes of organizational meeting are 
numbered 19 and 20, while the beneficiary's acceptance of appointment as director is numbered page 23. The 
four pages submitted on appeal are not numbered, although it appears that the petitioner is representing that 
these pages belong between pages 20 and 23. While these differences may be a result of irregular corporate 
record-keeping practices, the AAO finds it reasonable to question whether the four newly-submitted pages 
were in fact part of the petitioner's corporate records at the time the petition was filed, as no explanation has 
been provided for their earlier omission. Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Furthermore, as counsel specifically refers to 
"page 9" as a critical document, and no such page has been submitted, the AAO cannot conclude that the 
evidence substantiates the petitioner's claims. 
Given the unresolved inconsistencies in the record, the AAO finds the evidence submitted to be insufficient to 
corroborate the petitioner's claim that it is wholly owned by the foreign entity. Based on the foregoing 
discussion, the petitioner has not established that it has a qualifying relationship with the beneficiary's foreign 
employer. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the remaining issue in this matter is whether the petitioner established that the 
beneficiary would be employed in a primarily managerial or executive capacity within one year of approval of the 
petition, or that the U.S. company would support such a position. 
WAC 08 216 51848 
Page 8 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. The petitioner must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. 5 
2 14.2(1)(3)(v)(A). 
For several reasons, the petitioner in this matter has failed to establish that the United States operation will 
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
petitioner has failed to sufficiently describe both the beneficiary's and his proposed subordinates' proposed 
duties after the petitioner's first year in operation; and has failed to establish that a sufficient investment has 
been made in the United States operation. See 8 C.F.R. 5 214.2(1)(3)(v)(C). 
As discussed above, the petitioner has not adequately established the size of the U.S. investment, as required 
by 8 C.F.R. fj 214.2(1)(3)(v)(C)(2). The petitioner and foreign entity indicated that $40,000 was transferred 
from the foreign entity to cover the petitioner's start-up expenses, but the wire transfer documenting the 
transfer of such funds refers to the transfer as a payment for a purchase order. Absent additional explanation 
regarding the "purchase order" notation, as well as additional documentation, such as copies of the petitioner's 
bank statements, the AAO cannot determine whether these funds are actually available for start-up expenses 
or that they were intended for this purpose. 
Second, the petitioner has not submitted an adequate description of the beneficiary's proposed duties, and the 
duties of his proposed subordinates, sufficient to establish that he will be performing primarily managerial or 
executive duties at the end of the first year of operations. When examining the proposed executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the proposed 
job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe 
the duties that will be performed by the beneficiary and indicate whether such duties will be either in an 
executive or managerial capacity. Id. 
In this matter, the petitioner has provided a general description of the beneficiary's proposed duties that fails 
to demonstrate what the beneficiary will do on a day-to-day basis after one year in operation. The petitioner 
stated at the time of filing that, at the end of the first year of operations, the beneficiary would "spend the 
majority of his time on duties relating to policy and operational management," and that his specific duties in 
this regard would include "evaluating business customer profiles to determine risks and credit worthiness," 
"determining the actual selling price of gemstones," and "meeting with the company's existing and potential 
customers to maintain positive customer relations." The responsibilities, without further explanation regarding 
the specific tasks to be performed, suggest that the beneficiary may be directly involved in sales, marketing and 
WAC0821651848 
Page 9 
other operational tasks even after the company hires additional staff. If the beneficiary will be personally 
involved in selling or providing the petitioner's marketing services to clients, such duties will not be in a 
managerial or executive capacity. 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 Int'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
The remainder of the beneficiary's initial job description was vague and nonspecific, indicating that the 
beneficiary "will establish company goals and objectives," "coordinate functions and operations between 
departments," and "establish responsibilities for personnel." While these duties suggest that the beneficiary 
would exercise authority over the petitioner's operations, they provide little insight into what specific tasks he 
will primarily perform on a day-to-day basis. Reciting the beneficiary's vague job responsibilities or broadly- 
cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's proposed 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's anticipated 
organizational structure, the duties of the beneficiary's proposed subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties at the end of the first year of 
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in the newly established business. 
In its letter dated July 21, 2008, the petitioner stated that, by the end of the first year of operations, it intends 
to hire three employees, including: a gemologist who would be responsible for grading gemstones and 
making pricing recommendations; a sales manager who will take orders and respond to customer inquiries; 
and an administrative assistant to answer telephones. In the request for evidence issued on September 25, 
2008, the director requested that the petitioner submit an organizational chart including a brief description of 
the job duties, educational levels and proposed salaries for all employees who would work under the 
beneficiary's supervision. The petitioner submitted a copy of its business plan in response to the RFE, 
however, it provided no additional insight into the duties to be performed by the beneficiary's subordinates. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJi, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As such, the record as presently constituted does not provide sufficient information regarding how the day-to- 
day functions of the petitioning company will be distributed among the petitioner's anticipated four-member 
staff at the end of the first year of operations. The petitioner has not indicated who will be responsible for 
critical functions such as purchasing, marketing, import and distribution activities and the AAO cannot 
assume that the beneficiary would be relieved from performing such non-managerial functions, especially in 
* WAC0821651848 
Page 10 
light of the petitioner's claims that one of the beneficiary's primary responsibilities would be "meeting with 
the company's existing and potential customers to maintain positive customer relations." 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). While it appears that the beneficiary would exercise the 
requisite authority over the U.S. company as the senior member of its proposed four-person staff, based on the 
current record, the AAO is unable to determine whether the claimed managerial duties would constitute the 
majority of the beneficiary's duties within one year, or whether the beneficiary would primarily perform non- 
managerial administrative or operational duties. The petitioner's description of the beneficiary's job duties 
does not establish what proportion of the beneficiary's duties would be managerial in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Overall, as the petitioner fails to clearly explain what tasks the beneficiary and his subordinate staff would 
perform after the petitioner's first year in operation or to explain how much time the beneficiary will devote to 
performing non-qualifying tasks, it cannot be confirmed that he will be "primarily" employed as a manager or 
executive within one year. 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial or 
executive capacity after the petitioner's first year in operation. 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), afyd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
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. 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 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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.