dismissed L-1A Case: Gourmet Confections And Coffee

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529-2090 
identicjicg &a de!cted to 
prCVcT:i C! 82,;i;' !ix:l;/l.u~~sted 
inva:;ion of :;etqtj:;~{ privacy 
 U. S. Citizenship 
and Immigration 
PUBLIC COPY 
File: EAC 07 228 52408 Office: VERMONT SERVICE CENTER Date: FEB 1 7 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (a)(15)(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. $ 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 or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
&h) F. Grissom, Acting Chief 
Administrative Appeals Office 
EAC 07 228 52408 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to 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. 5 1101(a)(15)(L). The petitioner, a Florida corporation, states that it is engaged in the import and sale 
of "gourmet confections, coffee and equipment." The petitioner claims to have a qualifying relationship with 
Industrial (., located in Lima, Peru. The petitioner seeks to employ the 
beneficiary as its marketing manager for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would 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 submits a more detailed description of 
the beneficiary's proposed duties in the United States and asserts that he will be employed in a managerial 
capacity. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 3 214.2(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 (I)(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 qualifjring organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himther 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. 
EAC 07 228 52408 
Page 3 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition on July 27,2007. In a letter dated July 24,2007, the petitioner 
described the beneficiary's proposed duties as follows: 
The Marketing Manager will be responsible for locating and pinpointing the potential 
markets. This will be performed based on survey and detailed demographic research. Due to 
the fact that our product is gourmet confection and equipment, the Marketing Manager will 
determine the source of demand for gourmet confections, equipment, confections, and 
EAC 07 228 52408 
Page 4 
products. The Marketing Manager will prepare detailed reports to present to the President. 
Together, they will review the anticipated costs for distribution and immediate profitability of 
the different locales. Thereafter, the marketing Manager will prepare reports on with whom, 
where, and when to make contact with the appropriate personnel or other chosen personnel to 
make contact and negotiate the potential market. . . . Additionally the Marketing Manger [sic] 
will design together with the Sales Manager the different promotions and plans or strategies 
directed to increase the number of consumers of the products that the company would be 
marketing. He will be responsible for designing the flyers and announcements that will be 
published in the different advertising medias [sic] such as newspapers, magazines and other 
medias [sic]. Furthermore he will be responsible for bringing together and leading a creative 
team to work on each account and marketing campaign as well as coordinating the work of 
outside contractors who are andlor will be engaged to perform services on the accounts. 
The petitioner stated that the U.S. company "is dedicated to installing and supplying the necessary equipment 
and our coffee product using the technology of Cafe Fetelli Pod System to woners [sic] of coffee stands as 
well, and other facilities that sale [sic] andlor provide coffee in addition to their normal operations of selling 
food and soft drinks." 
The petitioner indicated that the U.S. company has five employees, and noted that the position to be filled by 
the beneficiarv recentlv became vacant. The ~etitioner submitted an organizational chart de~icting a general 
u w 
manager, a sales manager, a marketing manager identified as , a salesman and assistant 
manager, and a driver. The petitioner identified a vacant position subordinate to the marketing manager. The 
petitioner submitted a number of IRS Forms 941, Employer's Quarterly Federal Tax Return, and Florida 
Forms UCT-6, Employer's Quarterly Report, but all of the submitted documents were from 2005 and 2006. 
The most recent Form UCT-6 submitted, for the first quarter of 2006, showed that wages were paid to the five 
employees identified on the organizational chart during that period. 
The director found the initial evidence to be insufficient to establish that the beneficiary would be employed 
in a primarily managerial or executive capacity. Accordingly, the director issued a request for additional 
evidence (RFE) on October 10, 2007, in which he requested, inter aha, the following: (I) a comprehensive 
description of the beneficiary's duties with an explanation as to how those duties would be managerial or 
executive in nature; (2) a list of the U.S. company's employees and a complete position description for all 
employees in the United States; (3) a complete copy of the U.S. company's IRS Forms 941 for the first two 
quarters of 2007; (4) copies of all Forms W-2 and 1099 issued in 2006; (5) copies of the company's Forms 
W-3 and 1096 for 2006. 
In a response dated November 21, 2007, counsel for the petitioner stated the following with respect to the 
director's request for a comprehensive description of the beneficiary's duties: 
Our previously submitted letter details the job duties that the Beneficiary will be performing 
in the United States. Additionally. the Beneficiarv will be res~onsible for redacing and 
" 
overieeing~ , who is currently employed by [the petitioner] in the 
marketing epartment. A mona y, [the beneficiaty] will be responsible for hiring further 
Page 5 
marketing staff in order to ensure that the strategy and campaign created by [the beneficiary] 
and approved by [the petitioner] [sic]. 
The petitioner submitted an employee list identifying the same individuals depicted on the previous 
organizational chart. The petitioner indicated that the beneficiary would perform the following duties as 
marketing manager: 
Will be responsible for all marketing strategies including pinpointing the potential markets 
and design the marketing campaigns promoting the product along with the general manager. 
He will be directing and supervising the marketing staff to ensure the success and increase the 
number of consumers of the products that the company would be marketing. 
In a separate document, the petitioner provided the following description of the marketing manager position: 
This Department of the company is in charge of presenting the different products to the 
different retailers. 
He is the person in charge of evaluating and initiating the promotion and advertising 
campaigns necessary to present the products with the target population. 
He designs together with the General Manager the different promotions and plans or 
strategies directed to increasing the number of consumers of the products that the 
company would be marketing. 
He designs the flyers and the announcements that will be published in the different 
advertising medias such as newspapers, magazines and others. 
He is also responsible for evaluating together with the General Manager the results of 
the different campaigns. 
The petitioner also provided more detailed position descriptions for the other claimed employees, and copies 
of its 2006 Forms W-2. The petitioner submitted its IRS Forms 941, Employer's Quarterly Federal Tax 
Return, for the first two quarters of 2007. The petitioner reported only one employee in each quarter, and 
indicated that it paid total wages of $3 1,200 and $3 1,55 1. 
The director denied the petition on January 22, 2008, concluding that the petitioner did not establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, the 
director noted that although the petitioner claims to have five employees, its Forms 941 for the first half of 
2007 indicate that the company currently has only one employee. The director further found that the 
petitioner's descriptions of the beneficiary's duties are too general, and do not specify exactly what the 
beneficiary will be doing within the context of the company's current staffing arrangement. The director 
concluded that the beneficiary would likely be engaged in providing sales and services to the petitioner's 
clients, rather than assisting in the management of the company as claimed. 
On appeal, the petitioner asserts that the beneficiary's duties are "purely executive" and submits a list of 22 
job duties and responsibilities to be performed by the beneficiary as "sales and marketing manager." As the 
job description is part of the record, it will not be repeated in its entirety here. Briefly, the petitioner 
distinguishes between "management" and "operative" duties, and includes a breakdown of the amount of time 
EAC 07 228 52408 
Page 6 
the beneficiary will allocate to the listed tasks. According to the petitioner, the beneficiary will devote 70 
percent of his time to operative tasks and 30 percent of his time to management tasks. The petitioner also 
includes "continuous" responsibilities, including understanding customer requirements, making rapid cost 
calculations, providing feedback on buying trends, recording sales and order information, gathering market 
and customer information, and acting as a contact with potential markets. 
The petitioner submits copies of its IRS Form W-3, Transmittal of Wage and Tax Statements, for 2007, which 
t the petitioner paid one employee in 2007. 
 The petitioner submitted a Form W-2 for = 
, the general manager, in the amount of $15,600. There is no evidence that the petitioner employed 
any other workers in 2007. 
Upon review, the petitioner has not established that the beneficiary will be employed in a managerial or 
executive capacity. 
When examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's description of the 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 to be performed by the 
beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. 
The AAO concurs with the director that the position descriptions submitted with the initial petition and in 
response to the RFE were overly vague and general, and were insufficient to establish that the beneficiary 
would perform primarily managerial duties. The petitioner has now clarified the beneficiary's proposed duties 
on appeal. However, based on the detailed position description, it is evident that the beneficiary will devote 
the majority of his time to non-managerial tasks related to the sales, marketing and promotion of the 
petitioner's products. The petitioner has not established that the beneficiary will be employed in a managerial 
position, other than in position title. As noted above, the petitioner indicates that a full 70 percent of the 
beneficiary's time will be devoted to "operative" duties. These tasks include negotiating with vendors to 
coordinate sales and deliveries, preparing market reports, regularly visiting customers, demonstrating 
products to potential customers, negotiating and concluding sales with customers, gathering market and 
customer information, visiting retail and wholesale outlets, attending trade exhibitions, checking quantities of 
goods in stock, making cost calculations and recording sales order information. While the beneficiary may be 
responsible for marketing, advertising, and promotion, and perform some duties that would be associated with 
a managerial position, it is evident that he would also be solely responsible for all non-managerial tasks 
associated with these activities, as well as the company's day-to-day sales and delivery matters. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
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). Here, the petitioner has 
indicated that the beneficiary's tasks are primarily operational in nature, and therefore, he can not be deemed 
to be employed in a qualifying managerial capacity for the purposes of this visa classification. 
EAC 07 228 52408 
Page 7 
The petitioner indicated that the beneficiary would eventually be responsible for hiring and overseeing 
subordinate marketing staff in the future. However, the petitioner must establish eligibility at the time of filing 
the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). Furthermore, the evidence of record shows that the petitioner has undergone a decrease in its 
staffing levels, thus raising questions as to whether the company realistically intends to fully staff a marketing 
department. While the petitioner has consistently claimed to employ five people, it has offered no 
explanation as to why it can only document the employment of one worker as of the date the petition was 
filed. 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). Furthermore, the petitioner submitted in response to the RFE two Forms 941 showing that the 
company had paid in excess of $60,000 in wages during the first two quarters of 2007. On appeal, the 
petitioner submits its Form W-3 and Form 940, Employer's Annual Federal Unemployment (FUTA) Tax 
Return, indicating that the company paid total wages of $15,600 in 2007. 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. Id. at 59 1. The petitioner has not established that it currently 
employs anyone other than a general manager. Therefore, absent evidence to the contrary, it appears that the 
beneficiary, as "marketing manager," would be the junior member of the company's two-person staff. 
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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). If a petitioner claims 
that the beneficiary is primarily managing an essential function, the petitioner must furnish a detailed position 
description that clearly explains the duties to be performed in that capacity, i.e. identifies the function with 
specificity, articulates the essential nature of the function, and establishes the proportion of the beneficiary's 
daily duties attributed to managing the essential function. If a petitioner fails to document what proportion of 
the beneficiary's duties would be managerial functions and what proportion would be non-managerial, the 
AAO cannot determine whether the beneficiary is primarily performing the duties of a function manager. See 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). In addition, the petitioner's 
description of the beneficiary's daily duties must clearly demonstrate that the beneficiary primarily manages 
the function rather than performs the duties related to the function. As discussed, the petitioner has expressly 
stated that at least 70 percent of the beneficiary's time would be allotted to "operative," non-managerial tasks. 
The petitioner has also failed to establish that the beneficiary would serve at a senior level within the 
company's organizational hierarchy or with respect to the function managed. The fact that the beneficiary will 
be the only employee responsible for marketing, sales and promotional activities does not elevate him to the 
level of a function manager. Again, the actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs 
of the organization, in light of the overall purpose and stage of development of the organization. In reviewing 
the relevance of the number of employees a petitioner has, federal courts have generally agreed that USCIS 
"may properly consider an organization's small size as one factor in assessing whether its operations are 
EAC 07 228 52408 
Page 8 
substantial enough to support a manager." Family Inc. v. US. Citizenship and Immigration Services, 469 F. 
3d 1313, 1316 (9" Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. 
Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS 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-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). It is the petitioner's obligation to establish that 
the day-to-day non-managerial tasks of its marketing function managed are performed by someone other than 
the beneficiary. 
Here, the petitioner has not established that it will employ or contract any workers, other than the beneficiary, 
to perform its day-to-day sales, marketing, and promotional tasks. The record shows that the director did take 
into consideration the petitioner's overall purpose and stage of development, and properly concluded that the 
petitioner had not established that it has a reasonable need for a full-time manager to oversee its marketing 
and expansion functions. The evidence submitted on appeal, particularly the new position description and the 
payroll documentation for 2007, further support a conclusion that the beneficiary will perform primarily non- 
managerial tasks. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
by the petitioner in a primarily managerial capacity. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the petitioner and the foreign entity 
have a qualifying relationship. 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. 9 2 14.2(1). 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in pertinent part: 
(L) AfJiliate 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. 
On the L Classification Supplement to Form 1-129, the petitioner indicated that 
 owns 25% of 
the foreign entity, and 50% of the U.S. company, thus it appears that the petitioner is attempting to establish 
- - 
an affiliate relationship. However, the petitioner's description of the stock distribution of the companies does 
not meet exactly the definitions constituting a qualifying relationship between the United States entity and the 
foreign entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). The petitioner has submitted evidence of Ms. 
EAC 07 228 52408 
Page 9 
s 25 percent interest in the foreign entity, but has not shown that she controls the foreign entity based 
on this minority interest. To establish eligibility in this case, it must be shown that the foreign employer and 
the petitioning entity share common ownership and control. Control may be "de jure" by reason of ownership 
of 51 percent of outstanding stocks of the other entity or it may be "de facto" by reason of control of voting 
shares through partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). 
The petitioner has also claimed to be a subsidiary of the foreign entity, but has failed to submit any 
documentary evidence of the ownership and control of the U.S. company in support of this claim. The 
petitioner's 2006 Form 1120, U.S. Corporation Income Tax Return, indicates at Schedule K that one foreign 
person or entity owns 51 percent of the petitioner's stock. The petitioner did not attach a completed Form 
5472. which would have identified the foreign shareholder. Furthermore. this information is inconsistent with 
the petitioner's previous claim that 
d 
owns 50 percent of the U.S. entity. Going on record 
without supporting documentary evi ence 1s not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The petitioner has not submitted sufficient evidence to 
establish that it has a qualifying relationship with the foreign entity, and for this additional reason, the petition 
cannot be approved. 
Another issue not addressed by the director is whether the petitioner established that the beneficiary was 
employed by the foreign entity in a primarily managerial or executive position for at least one continuous year 
in the three years preceding the filing of the petition. See 8 C.F.R. 5 214.2(1)(3)(iii) and (iv). 
First, there is some question as to whether the beneficiary was employed by the foreign entity for a full year. 
The petitioner stated in its letter dated July 24, 2007 that the beneficiary was employed by the foreign entity 
from January 20, 2005 until "on or about January 2006." However, the beneficiary indicated in his resume 
that he was employed by the foreign entity from January 2005 until December 2005. He indicates that he 
began working for an unrelated employer in Peru in January 2006. Therefore, the beneficiary's exact dates of 
employment with the foreign entity are unclear. If he was employed only from January 20, 2005 until the end 
of December 2005, he would be slightly short of one full year. In addition, the beneficiary's passport shows 
that he made at least one trip to the United States during 2005. Pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(A), 
periods spent in the United States in a lawful status for a branch of the same employer or a parent, affiliate or 
subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the 
one year of continuous employment abroad, but such periods shall not be counted toward fulfillment of that 
requirement. Therefore, any time the beneficiary spent in the United States during his claimed year of 
employment with the foreign entity cannot be counted towards his one year of qualifying employment. Based 
on the evidence of record, it is not clear that the beneficiary was employed by the foreign entity for the 
requisite time period. 
Furthermore, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity. The beneficiary indicates on his resume that he held the positions of sales manager and 
administration manager, and he was identified on the foreign entity's organizational chart as "sales- 
marketing-technical support manager." However, counsel for the petitioner stated in her letter dated 
November 21, 2007 that the beneficiary was hired by the foreign entity as an assistant in the sales and 
EAC 07 228 52408 
Page 10 
marketing department, and later promoted. Therefore, even if the beneficiary was employed by the foreign 
entity for a full year, the petitioner has failed to demonstrate that he was employed in a qualifying managerial 
or executive capacity for a full year. 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), afd. 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 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. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.