dismissed L-1A Case: Graphic Design/Marketing

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u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 06 049 50353 Office: TEXAS SERVICE CENTER Date: SEP 1 0 1001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(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. Any further inquiry must be made to that office.
RO~
Administrative Appeals Office
www.uscis.gov
SRC 06 049 50353
Page 2
DISCUSSION: The Director, Texas 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 general manager
as an L-l A nonimmigrant intracompany transferee pursuant to section 101(a )(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of Florida and is allegedly engaged in the business of graphic design, marketing, and advertising.
The beneficiary was initially granted a one-year period of stay to open a new office in the United States, and
the petitioner now seeks to extend the beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; (2) that the petitioner still has
a qualifying relationship with the foreign entity; or (3) that the petitioner has secured sufficient premises to
house its business operation.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of an executive or manager. Counsel further asserts
that the record establishes that the petitioner and the foreign entity are qualifying organizations and that
discrepancies in the record are clerical errors. Finally, counsel asserts that the premises secured by the
petitioner sufficiently house its business operation. In support of the appeal, counsel submits a brief and
additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
SRC 06 049 50353
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 him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F.R. § 2l4.2(l)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(l)(ii)(G) of this section;
(B) 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;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
The first issue 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. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
SRC 06 049 50353
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(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The 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, and counsel on appeal asserts that the beneficiary may be classified as either
an executive or a manager.
The petitioner described the beneficiary's job duties in the Form 1-129 as follows:
GENERAL MANAGER IN CHARGE ESTABLISH THE DIFFERENT DEPARTMENT OF
THE CORPORATION, HIRING AND FIRING THE NECESSARY PERSONAL [sic], CO­
ORDINATE THE VARIUOS [sic] TEAMS TO ASSURE EACH IS SERVICED ON
SCHEDULE, ETC.
The petitioner also submitted an organizational chart showing the beneficiary supervising an "assistant" and
an "executive." However, the petitioner did not describe the duties of these two subordinate employees.
On January 30, 2006, the director requested additional evidence. The director requested, inter alia,
descriptions of the subordinate employees and the beneficiary's job duties.
In response, the petitioner submitted a letter dated February 18, 2006 in which the petitioner described the
beneficiary's duties as follows:
• Obtain service requests from clients (8 hours per week)
• Coordinate team's efforts to ensure services are rendered as requested (16 hours per
week)
• Hire and manage performance of all personal [sic] (6 hours per week)
• Manage company's accounts and payroll (10 hours).
SRC 06 049 50353
Page 5
The petitioner also described both the beneficiary's and the subordinate employees' duties in a document titled
"employee report." The "secretary" is described as assisting the beneficiary, and the "executive" is described
as being responsible for keeping contracts on time. The beneficiary is further described as coordinating "all
the bussines [sic] strategic and financial aspects" and also as working "as an account executive."
On May 9, 2006, 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 or manager.
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.
As a threshold issue, it is noted that on appeal the petitioner has attempted to substantially expand upon the
beneficiary's purported job duties and on the duties of the subordinate employees. However, the petitioner
was put on notice of required evidence in the Request for Evidence and given a reasonable opportunity to
provide it for the record before the visa petition was adjudicated. The petitioner failed to submit the requested
evidence and now submits it on appeal. The AAO will not consider this evidence for any purpose. See Matter
of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal
will be adjudicated based on the record of proceeding before the director. Moreover, on appeal, a petitioner
cannot offer a new position to the beneficiary, or materially change a position's title, its level of authority
within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that
the position offered to the beneficiary when the petition was filed merits classification as a managerial or
executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner
may not make material changes to a petition in an effort to make a deficient petition conform to CIS
requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998).
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 does on a day-to-day
basis. For example, the petitioner states that the beneficiary will coordinate the "team's efforts" and manage
accounts and payroll. However, the petitioner does not explain what efforts he will coordinate or what,
SRC 06 049 50353
Page 6
exactly, he will be doing to "manage" accounts and payroll. The fact that the petitioner has given the
beneficiary a managerial title and has prepared a vague job description 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), afj'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 of
California, 14 I&N Dec. 190 (Reg. Comm. 1972).
Moreover, most of the duties listed by the petitioner appear to be non-qualifying administrative 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 obtain service requests from clients, "manage" accounts and payroll, and act as
a first-line supervisor of non-professional employees (see infra). However, these duties constitute
administrative or operational tasks when the tasks inherent to these duties are performed by the beneficiary.
As the petitioner has failed to provide detailed job descriptions for the subordinate employees, the record fails
to establish that the petitioner employs workers who will relieve the beneficiary of the need to perform the
non-qualifying tasks inherent to the duties ascribed to him as well as to the provision of graphic design
services. Therefore, it must be concluded that he will perform these tasks and it cannot be confirmed that he
will be "primarily" employed as a manager. An employee who "primarily" performs the tasks necessary to
produce a product or to provide services is not considered to be "primarily" employed in a managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N
Dec. 593, 604 (Comm. 1988).
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 and vague job descriptions for the subordinate staff members, the
beneficiary appears to supervise a staff of two employees. However, the petitioner has not established that
the two employees are primarily engaged in performing supervisory or managerial duties. To the contrary, it
appears that these employees are performing the tasks necessary to produce a product or to provide a service,
i.e., clerical work and contract administration. 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 operations beyond the
level normally vested in a first-line supervisor, unless the supervised employees are professionals.
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
Moreover, as the petitioner did not establish the skill level or educational background required to perform the
duties of the two subordinate positions, the petitioner has not established that the beneficiary will manage
professional employees.
1
Therefore, the petitioner has not established that the beneficiary will be employed
primarily in a managerial capacity.'
lIn 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
SRC 06 049 50353
Page 7
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(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
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in 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). While it is noted that, on appeal, the petitioner asserts that at
least one of the subordinate employees possesses a university degree, the AAO must focus on the level of
education required by the position, rather than the degree held by subordinate employee. The possession of a
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 the instant case, the petitioner has not,
in fact, established that a bachelor's degree is actually necessary, for example, to perform the duties of either
of the subordinate employees.
2While the petitioner has not clearly argued that the beneficiary will manage an essential function of the
organization, the record nevertheless would 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
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's 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 manager 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.
See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
SRC 06 049 50353
Page 8
stockholders of the organization ." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be 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 performing 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.
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors , such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-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).
Accordingly , in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties , and the petition may not be approved for that reason.
The second issue in the present matter is whether the petitioner has established that it still has a qualifying
relationship with the foreign entity .
The regulation at 8 C.F.R. § 214.2(l)(l4)(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)(l)(ii)(G) of this section[.]
Title 8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the defmitions of a parent , branch,
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defined in pertinent part as a corporation "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, the
petitioner provided copies of its articles of incorporation authorizing the issuance of 300 shares of stock and a
stock certificate purporting to issue 100 shares of stock to the foreign entity. The petitioner did not submit a stock
ledger or any other organizational documents.
On May 9, 2006, the director denied the petition. The director concluded that the petitioner failed to establish that
it is owned and controlled by the foreign entity and is thus a qualifying organization. The schedules K to the
petitioner's 2004 and 2005 Forms 1120 both indicate that the petitioner is not a subsidiary of another corporation.
As the petitioner has failed to explain these inconsistencies in the record regarding the petitioner's ownership and
control, the petition could not be approved.
On appeal, counsel argues that the cited inconsistencies in the Forms 1120 were "clerical errors" and that the
petitioner has since filed amended tax returns to correct these errors.
Upon review, the petitioner's assertions are not persuasive.
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The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm.
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595.
In this matter, the petitioner has not established that it has a qualifying relationship with the foreign entity. As
correctly noted by the director, the petitioner's Forms 1120 indicate that the petitioner is not a subsidiary of
another corporation. As these averments are fundamentally inconsistent with the petitioner's assertion that it
is 1000/0 owned by a foreign company, the director properly denied the petition. 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).
While counsel on appeal attempts to explain these inconsistencies in the tax returns by asserting that the
averments were "clerical errors" and by submitting "amended" tax returns purporting to correct these errors,
this explanation fails for two reasons. First, the amended Forms 1120 are still inconsistent with the
petitioner's assertion that it is 1000/0 owned by the foreign entity. While the amended Forms 1120 now
indicate that a "foreign person" owns at least 25% of its voting stock, the Forms 1120 still indicate that no
single stockholder owns 50% or more of the petitioner's stock. The petitioner offers no explanation for this
additional inconsistency. Second, counsel offers no explanation for how the alleged "clerical error" was made
by the petitioner's tax preparer in the first place. Going on record without supporting documentary evidence
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of
California, 14 I&N Dec. 190.
Moreover, counsel's assertions on appeal regarding the petitioner's ownership and control have created a
second serious inconsistency in the record which will also compel the denial of the petition. As explained
above, the petitioner originally asserted that it is 100% owned by the foreign entity. In support of this
assertion, the petition submitted, inter alia, a stock certificate (#01) dated May 14, 2004 purporting to issue
100 shares of stock to the foreign entity. However, on appeal, counsel and the petitioner both assert that the
petitioner is two-thirds owned by the foreign entity. In support of this new assertion, the petitioner submitted
the above-described certificate #01, certificate #02 dated May 14, 2004 purporting to issue 100 more shares to
the foreign entity, and certificate #03 dated May 14, 2004 purporting to issue 100 shares to the beneficiary.
The petitioner does not offer any explanation for why these stock certificates were not submitted with the
original petition and does not attempt to identify which description of its ownership and control is correct. As
explained above, it is incumbent upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. In this matter, such serious and serial inconsistencies in the record regarding
the petitioner's ownership and control cast doubt on the veracity of the entire petition. 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 ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
SRC 06 049 50353
Page 10
Accordingly, the petitioner has failed to establish that it still has a qualifying relationship with the foreign
entity, and the petition may not be approved for this additional reason.
The third issue in the present matter is whether the director properly denied the petition because of the
petitioner's alleged failure to establish that it has secured sufficient physical premises to house its business
operation.
As indicated above, the instant petition seeks to extend a previously approved "new office" petition. In
denying the petition, the director stated the following:
Further, it appears that sufficient space may not have been secured for conducting a graphic
arts/advertising business. The commercial lease and cancelled checks for rented space
presented in the [request for evidence] reply appear to describe a small warehouse space that
would not be adequate for a business, as described in the regulations above.
On appeal, counsel asserts that the physical premises secured by the petitioner are sufficient to house its
business operation. Counsel submitted photographs of the office and asserted that many of the services
provided by the petition are performed offsite.
Upon review, counsel's assertions are not persuasive.
In this matter, the sufficiency of the petitioner's business premises, and the petitioner's need to establish this
fact, are both made relevant to this "new office extension" petition by 8 C.F.R. §§ 214.2(1)(l4)(ii)(A) and (B).
Both of these criteria require the beneficiary to establish that it is, and has been for the previous year, "doing
business" as defined in 8 C.F.R. § 2 14.2(1)(l)(ii)(H). "Doing business" is defined in pertinent part as "the
regular, systematic, and continuous provision of goods and/or services." In this matter, the petitioner was
obligated to establish that it occupies physical premises sufficient to permit the United States operation to
conduct business. As correctly determined by the director, the physical premises described in the lease
submitted by the petitioner do not appear to be sufficient to house the petitioner's business operation.
The lease submitted by the petitioner commenced on November 7, 2005, less than one month prior to the
filing of the instant "new office extension" petition. The record is devoid of any evidence regarding the
petitioner's physical premises prior to its securing of the premises described in the lease. Moreover, the lease
describes the premises only as "unit 11" and as including two parking spaces. The lease does not describe the
square footage or provide a floor plan. The record is also devoid of any explanation as to how the petitioner
operates its business in such a location. While counsel attempts to supplement the record on appeal with
photographs and other evidence regarding the sufficiency of the physical premises, the director specifically
requested additional evidence regarding the sufficiency of the physical premises in the Request for Evidence.
The petitioner failed to submit the requested evidence and now submits it on appeal. The AAO will not
consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764; Matter of Obaigbena, 19
I&N Dec. 533.
Also, while it is noted that the petitioner submitted additional evidence regarding its purported business
activities such as invoices, tax returns, and bank statements, this evidence when considered in conjunction
SRC 0604950353
Page 11
with the above described lease is nevertheless insufficient to establish that the petitioner is, or had been,
"doing business." While the petitioner submitted invoices, it submitted no evidence that these invoices had
ever been paid. Therefore, the record does not establish that the petitioner has been engaged in the regular,
systematic, and continuous provision of goods and/or services. 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.
Accordingly, as the petitioner has failed to establish that it is, or had been, "doing business" during the
previous year, the petition may not be approved for this additional reason.'
The initial approval of an L-IA 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.
3It is noted that the director cited 8 C.F.R. § 214.2(l)(3)(v)(A) as authority for denying the instant petition.
However, as the instant petition does not concern the opening of a new office in the United States, the
director's reliance on this regulation was misplaced. Instead, the criteria at 8 C.F.R. § 214.2(l)(l4)(ii), as
explained above, apply to this petition. Therefore, the petition's denial is withdrawn in part to the extent the
director treated the petitioner as a "new office."