dismissed L-1A Case: Hotel Management

Identifyingdatadeletedto
preventclearlyunw8JTBDtec:i
~nvasion ofoersonalorfvaClt
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3042
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File:
INRE:
SRC 0414450036
Petitioner:
Beneficiary:
Office: TEXAS SERVICE CENTER Date: MAY 12 2006
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101 (a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
1
>t~obert P. Wiemann, Chief
","dministrative Appeals Office
www.uscis.gov
SRC 04 14450036
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 petition seeking to extend the employment of its president as an L-IA
nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.c. § 1101(a)(l5)(L). The petitioner is a corporation organized in the State of Florida that
claims to be engaged in property development and hotel management services. The petitioner claims that it is
the subsidiary of Shaival Realty (Pvt) Ltd., located in Navrangpura, India. 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 for two years.
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, counsel for the petitioner asserts that the beneficiary
is performing the duties of an executive and claims that the director misapplied the law by denying the
petition. Counsel also contends that the petitioner had another employee at the time the petition was filed, the
beneficiary's spouse, who was not included on the petitioner's previously submitted organizational chart or
quarterly wage reports. Counsel submits a brief and additional evidence in support of the appeal.
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 (I)(I)(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.
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(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. § 214.2(l)(14)(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 III
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 primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.s.c. § 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
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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. § llOl(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 nonimmigrant petition was filed on April 23, 2004. In a March 31, 2004 letter, the petitioner indicated
that it anticipated employing four to five individuals "this year" and provided the following description for the
beneficiary's role as president of the company:
The duties of this professional position include executive responsibility for all financial and
management analysis activities. [The beneficiary] will be responsible for planning,
developing, and establishing policies and objectives of the business organization in
accordance with the board's directives and corporation charter. He will confer with the
overseas company officials to plan business objectives, develop organizational policies, and
establish responsibilities and procedures for attaining our company's objectives. He will be
responsible for conducting management studies and analyzing financial reports on operations;
collecting and interpreting economic and statistical data to prepare budget estimates;
determining work load, personnel, and equipment requirements, and to forecast future needs;
and monitoring the supervision of all employees to make sure company procedures and all
local, state, and federal laws are being followed.
The petitioner did not submit a description of its business operations, but did provide (1) a property
management agreement, commencing January 1,2004, between the petitioner and Island Beach Management,
Inc. under which the petitioner would be responsible for managing the 40-unit Island Beach Resort; and (2) an
expired lease agreement (valid from December 1, 2002 until November 30, 2003) between the petitioner and
Marina View Motel, Inc., under which the petitioner would lease and operate the Marina View Motel.
On June 4, 2004, the petitioner issued a request for additional evidence to establish that the beneficiary would
be employed in a managerial or executive capacity under the extended petition. Specifically, the director
instructed the petitioner to submit: (1) an organizational chart of the U.S. company, specifying the
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beneficiary's position within the organizational hierarchy, as well as the names, job titles and duties of the
employees the beneficiary supervises; (2) state quarterly wage reports from the year 2003 to the present; and
(3) Employer's Quarterly Federal Tax Returns for the year 2003 to the present.
In a response dated July 20, 2004, former counsel for the petitioner provided the following additional
information regarding the beneficiary's duties in the United States:
[The beneficiary] acts in an executive/managerial capacity because he directs the
management of all essential functions within the organization. His responsibilities include
making all determinations regarding market penetration including fixing prices, negotiating
contracts for property management and sub-contractors, making executive decisions
regarding the allocation of funds to accomplish marketing goals, as well as managing a
budget. [The beneficiary] has spearheaded the organization's first entry into an overseas
market by developing the strategies for international business expansion into the United
States. In addition, [the beneficiary] has sole authority regarding the hiring and firing of
personnel and exercises unfettered discretion over the day-to-day operations of [the
petitioner]. He is directly responsible for establishing the goals and policies of the
organization and he directs its management with wide latitude in discretionary decision­
making with only limited and general input from the parent Indian company.
The petitioner also submitted a July 12, 2004 letter, in which it further described the beneficiary's duties and
the petitioner's operations:
[The beneficiary] . . . is directly responsible for the development of new business which
includes directing and coordinating the operations of the business organization; formulating
and administering organization policies; administering company policies; developing goals
and objectives; and reviewing activity, operating, and sales reports to determine changes in
programs or operations required.
[The petitioner] is a property management company, which is currently responsible for
managing two hotels and resorts .... We are also in negotiations to manage several other
resort properties. . . . [I]t is incumbent upon the beneficiary to operate all of the essential
managerial functions of our company, but also to direct and coordinate the company
activities of the properties we manage. Thus, the beneficiary is performing executive
responsibilities for all three entities.
He is responsible for coordinating and reviewing all of the activities that occur at the Marina
View Motel and Island Beach Resort. He is in constant communication with Rogger Griffith,
the Site Manager of Marina View Motel and Meera Kakkar, Site Manager for the Island
Beach Resort. The beneficiary must direct and coordinate the activities of the Site Managers
to make sure that the companies' objectives are being met and that maximum returns on
investments and productivity occur, direct the financial management of the companies;
develop new business; conduct management studies and analyze financial reports on
SRC 0414450036
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operations; collect and interpret economic and statistical data to prepare budge estimates;
determine work load, personnel, and equipment requirements, and to forecast future needs;
and monitor the supervision of all employees to make sure company procedures and all laws
are being followed.
Furthermore, [the beneficiary] is responsible for negotiating contracts with various sub­
contractors; reviewing their progress; and supervising and coordinating all of the activities of
the sub-contractors. [The beneficiary] uses sub-contractors for the resort's maintenance,
security and landscaping.
Although the Site Managers and staff of both the Marina View Motel and Island Beach
Resort as well as the sub-contractors are not directly paid employees of [the petitioner], [the
beneficiary] ... is directly responsible for supervising and directing their activities.
The petitioner submitted the requested state and federal quarterly reports, which confirmed that the
beneficiary is the petitioner's sole payroll employee. The petitioner also submitted its organizational chart
depicting the beneficiary as president over: (1) the site manager of the Marina View Motel, who supervises
motel staff; (2) the site manager of the Island Beach Resort, who supervises resort staff; (3) an accountant;
and (4) contract labor. As evidence of payments to the contractors, the petitioner submitted a number of
invoices issued by various pool maintenance, elevator maintenance, lawn maintenance and security
companies to the Island Beach Resort. The petitioner did not provide the requested job descriptions for the
beneficiary's subordinate employees.
The director denied the petition on August 3, 2004, concluding that the petitioner had not established that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director observed that the beneficiary is the petitioner's only employee, and found that the petitioner had
not demonstrated that the beneficiary's primary assignment has been or would be directing the management
of the organization or primarily directing or supervising a subordinate staff of professional, managerial or
supervisory personnel who relieve him from performing non-qualifying duties. The director determined that
while the beneficiary may exercise discretion over the day-to-day operations of the business, he would also be
required to perform many non-qualifying tasks.
On appeal, counsel for the petitioner asserts that the director has erred in its application of law to the facts of
the case and asserts that the duties performed by the beneficiary are "very much the same" as those found in
the statutory definitions of managerial and executive capacity. Counsel asserts that the number of employees
supervised by the petitioner is not determinative of the beneficiary's employment capacity, and states that CIS
must take unto account the reasonable needs of the organization in light of its overall purpose and stage of
development.
Counsel further asserts that the beneficiary's spouse worked for the petitioner from September 10, 2003 until
May 13,2004, when the validity of her employment authorization expired. The petitioner submits an affidavit
from the beneficiary's spouse in which she attests to her duties of holding executive responsibility for
financial and management analysis activities; coordinating the work of hotel/resort managers, the company
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accountant and contract workers; assisting the president in planning, developing and establishing the policies
and objectives of the organization; and conducting management studies and analyzing financial reports;
collecting and interpreting economic and statistical data to prepare budget estimates; determining work load,
personnel and equipment requirements, and monitoring the supervision of all employees. Counsel explains
that the beneficiary never considered his spouse an employee although she was "helping the business as an
operations manager." The petitioner submits a revised organizational chart which includes the beneficiary's
spouse as an operations manager reporting to the beneficiary.
Counsel states that the beneficiary's spouse was not reported on the petitioner's Florida Form UCT-6,
Employer's Quarterly Report, for the first quarter of 2004 "because she never could work for any other
organization because of her extended hours of work at [the petitioning company]." An affidavit from the
beneficiary states that he hired his spouse as operations manager "and promised her $15.00 per hour on
regular hours on overtime as applicable payable on demand or the equivalent of that in shares of [the
petitioning company]."
Counsel concludes that the beneficiary clearly exercises discretion over the day-to-day operations of the
business and performs much of the activities through his managers who supervise professional employees.
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R.
§ 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. !d.
The petitioner and counsel have provided vague and non-specific job descriptions that fail to demonstrate
what the beneficiary does on a day-to-day basis. The job descriptions provided for the beneficiary merely
paraphrase the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act, 8 U.S.c. §
1l01(a)(44)(B). For example, the petitioner stated that the beneficiary would be responsible for "planning,
developing and establishing policies and objectives" of the company and that he "directs its management with
wide latitude in discretionary decision-making with only limited and general input from the parent Indian
company." On appeal, counsel again submits a position description that paraphrases the statutory definition
and asserts that the description is "very much the same" as the duties described therein. However, conclusory
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava,
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afJ'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v.
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).
The petitioner also indicates that the beneficiary's duties include conducting management studies, analyzing
financial reports, and collecting and interpreting economic and statistical data. The petitioner has not
explained how these duties fall under the definitions of managerial or executive capacity. Based on the
current record, the AAO is unable to determine whether the claimed managerial duties constitute the majority
of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial administrative or
operational duties. The petitioner's description of the beneficiary's job duties does not establish what
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proportion of the beneficiary's duties is managerial or executive in nature, and what proportion is actually
non-managerial or non-executive. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991).
Overall, the petitioner's descriptions of the beneficiary's duties are too general to establish that he would be
performing primarily managerial or executive duties under the extended petition. 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 answer a critical question
in this case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989),
afJ'd, 905 F.2d 41 (2d. Cir. 1990).
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of
the organization, may not be the determining factor in denying a visa to a multinational manager or executive.
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.c. § 1101(a)(44)(C), 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 the present matter, however, the regulations provide strict evidentiary requirements for
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing
levels of the petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). The regulation at 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 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.
The petitioner in this matter has not adequately described or documented the nature of the petitioner's
business, thus making it difficult to determine how the petitioner operates, how it has staffed its operations
and what its reasonable needs are with respect to staffing. When examining the managerial or executive
capacity of a beneficiary, Citizenship and Immigration Services (CIS) reviews the totality of the record,
including descriptions of a beneficiary's duties and those of his or her subordinate employees, the nature of
the petitioner's business, the employment and remuneration of employees, and any other facts contributing to
a complete understanding of a beneficiary's actual role in a business.
The record contains insufficient evidence to establish the nature of the services the petitioner provides to the
two properties it claims to manage. The property management agreement between the petitioner and the
Island Beach Resort indicates that the petitioner was required to prepare and submit for approval a
management plan which would, among other things, prescribe the number, qualifications and duties of the
personnel to be employed. The petitioner has not provided a copy of this management plan, which would be
particularly helpful in determining the U.S. entity's actual responsibilities and staffing needs under the
agreement. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
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The property management agreement also indicates that the owner of the property would reimburse the
petitioning company for compensation payable to the on-site management and maintenance employees, thus
suggesting that these employees would be directly paid employees of the petitioning company. However, the
petitioner has stated that none of the beneficiary's claimed subordinates, including the "site managers" are
direct employees of the petitioning company. The record is devoid of any evidence documenting the
employment of the two "site managers," nor did the petitioner provide the requested job descriptions for the
beneficiary's claimed subordinate employees. Without this critical information, the AAO cannot find that the
beneficiary actually supervises these employees, much less make a determination that the beneficiary's
subordinates would serve in a managerial, supervisory or professional capacity, or that they would relieve the
beneficiary from performing primarily non-qualifying duties. Failure to submit requested evidence that
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
While the record establishes that independent contractors have provided routine maintenance services at one
of the properties managed by the petitioner, the petitioner has not established that it employed any staff to
perform the day-to-day clerical, administrative and financial functions of the business or staff to provide the
site management services required by the property management agreement. The petitioner's blanket claim
that the beneficiary has executive authority over all three businesses is not supported by evidence in the
record. Based on the petitioner's representations, it does not appear that the reasonable needs of the
petitioning company might plausibly be met by the services of the beneficiary as president, an independently
contracted accountant whose services have not been described, and various maintenance service providers.
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to
sections 101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not provided a detailed
description of the beneficiary's actual duties and has therefore not established this essential element of
eligibility .
The AAO acknowledges counsel's claim on appeal that the beneficiary's spouse served as the petitioner's
operations manager at the time the petition was filed. Counsel's assertion is not persuasive. The job
description provided for the "operations manager" position is essentially identical to that provided for the
beneficiary's position in support of the initial petition filing and is therefore not credible. The beneficiary
states in an affidavit that he hired his spouse and promised her wages of $15 per hour or stock in the
petitioning company. The petitioner has provided no evidence that she has been compensated in any way.
Further, the beneficiary stated on her Form 1-539, Application to Extend/Change Nonimmigrant Status, filed
concurrently with the instant petition, that she has not been employed in the United States since last admitted
in L-2 status on October 26,2002. Therefore, the AAO is left to question the validity of the petitioner's claim.
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). The petitioner has not established that it employed the beneficiary's spouse as its operations
manager at the time the petition was filed. Rather it appears that the petitioner is attempting to add artificial
complexity to the petitioner's organizational structure in an effort to establish that the company can support
the beneficiary in a managerial or executive capacity. A petitioner may not make material changes to a
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petition in an effort to make a deficient petition conform to CIS requirements. See Matter ofIzummi, 22 I&N
Dec. 169, 176 (Assoc. Comm. 1998).
The petitioner has indicated its intent to expand its operations and hire four to five additional employees in the
future. The AAO will not consider the petitioner's future staffing levels in determining whether the
beneficiary would be employed in a qualifying capacity under the extended petition. 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). As discussed above, 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.
The petitioner has not established that the beneficiary is acting in a managerial capacity by directing and
controlling a staff of managerial, professional or supervisory employees or managing an essential function of
the petitioner's organization. See section 101 (a)(44)(A)(ii). 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, 8 U.S.C. § l101(a)(44)(B). 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 managerial 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
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.
In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position. For this reason, the appeal will be dismissed.
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has
been engaged in the regular, systematic, and continuous provision of goods and/or services in the United
States for the previous year as required by 8 C.F.R. § 214.2(l)(14)(B). The petitioner has submitted: (1) its
financial statement for the year ended on December 31,2003; (2) its 2003 IRS Form 1120, U.S. Corporation
Income Tax Return, indicating gross receipts or sales of $100,950 (3) a property management agreement for
the Island Beach Resort; (4) an expired lease for the Marina Bay Motel; and (5) its bank statements for 2003.
The petitioner has not provided any financial documentation for 2004, nor any invoices, evidence of payments
made or received or other documentation of business transactions that would establish that the company has
been actively engaged in the regular, systematic and continuous provision of services for the previous year.
Again, going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Sofjici, 22 I&N Dec. at 165. For this additional reason, the
petition will be denied.
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), aff'd. 345 F.3d 683
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(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 the decision. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 V.S.c. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.