dismissed L-1A Case: Hurricane Shutter Installation

.. U.S. Department of Homeland Security
. 20 Massachusetts Ave., N.W., Rm. 3000
Washington , DC 20529 .
identifyingdatadeletedto . .
prevent clearlyunw~ted
invasionofpersonalpnv~
i
U.S. Citizenship
and Immigration
Services
....
FILE: EAC 07 10752616 Office: VERMONT SERVICE CENTER Date:. 'OIC 21.!Ill .
INRE: Petitioner:
Beneficiary:
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)(l5)(L) .
ON BEHALF OF PETITIONER:
"INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents ha~e been returned to
the office that originally decided your case. Anyfurther inquiry must be made to that office ..
R~
Administrative Appeals Office .
\ "..
www.uscis.gov
EAC 07 10752616
Page 2
.DISCUSSION: The Director, Vermont Service Center , denied the petition for anonimmigrant visa. The
matter is now before the Administrative Appeals Office (AA0) 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 101(a)(15)(L) of theImmigration and Nationality Act (the Act), 8
U.S.c. § 11Ol(a)(15)(L). The petitioner, a Florida limited liability ,company, intends to engage in the
installation of hurricane shutters and other home and garden services . The petitioner states that it is an
affiliate of located in Blagnac , France. The petitioner seeks to employ the beneficiary
as the general manager of its new office in the United States for a one-year period. . .
The director denied the petition, concluding thatthe petitioner did not establish thatthe beneficiary would be
employed by the U .S. company in a primarily managerial or executive capacity within one year.
, '
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 disputes the director's
decision and asserts that the beneficiary will be employed as an "executive manager." Counsel further argues
that the U.S . company has the potential to grow into one which will support a managerial position, as well as
subordinate supervisors and professionals. Counsel submits a brief and additional evidence in support of the
appeal.
To establish eligibility for the L-1 nonimmigrant visa classification, the 'petitioner must meet the criteria
,outlined in section 1 o1(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. § 214.2(l)(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)(1)(ii)(G) of this section.
(ii) Evidence thatthe 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 or full ti~e employment
, abroad with a qualifying organization .within the three years preceding the filing of
'the petition.
(iv) Evidence that the alien 's prioryear of employment abroad was in ~ 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
EAC 07 10752616 ,
Page 3
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(1)(3)(v) also provides that if the petition indicates that the beneficiary is
coming to the United States as a manager or execut ive to open o~to beemployed in a new office in the United
States, t~e petitioner shall submit evidence that: ' .
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involved executive or managerial authority over the new
operation ; .:1 '
(C) The intended United States operation , within one year of the approval of the petition ,
' will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B)
or (C) of this section, supported by information regarding :
(1) The proposed nature of the Office describing the scope of the entity , ,its
organizational structure and its financial goals;
(2) The 'size of.the United States investment and the financial 'ability of the foreign
entity to remunerate the beneficiary and to commence doing 'business in the
United States; and
(3) The organizational structure of the foreign entity.
The sole issue addressed by the director is whether the petitioner established that the United States operation,
withinone year of the approval of the petition, will support an executive or managerial position, as required by 8
C.F.R. § 2l4,2(l)(3)(v)(C) .
" .
Section 101(a)(44)(A) of the Act, 8 U.S .C. § 1101(a)(44)(A), defines theterm "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, ~r manages an essential function within th~ organization, or a department
or subdivision 'of the organization;
(iii) ,if another empl()yee 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 emploxee is directly supervised,
, J
EAC 07 ,107 52616
Paged
fun~tions at a senior l~vd within the organizational hierarchy or with ' respect to the
function managed; and
(iv) exercises discret ion over the day to day operations of the acti vity 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 JOl(a)(44)(B) of the Act, 8 V .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 goalsand policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making ; and "
, (iv) receives only general superv ision or direct ion from higher,level executives, the board
of directors, or stockholders of the organization.
The one-year "new office" provision is an accommodation for newly established enterprises , provided for by
USCISregulation , that allows for amore lenient treatment of managers or ~xecutives that are entering the United
States to open a new office. When a new business ' is first established and commences operations, the regulations
recognize that a des ignated manager or executive responsible for setting up operations will be engaged ina
variety oflow-Iev el activities not normally performed by employees at the executive or managerial level and that
often the full range of managerial responsibility cannot be performed in that first year. In an accommodation that
is more lenient than the 'strict language of the statute, the "new office" regulations allo~ a newly established ,
petitioner orie year to develop to a point that it ~an support thy employment of an alien iri a primarily managerial
'or executive position. '
Accordingly, if a petitioner indicates that a beneficiary iscoming .to the United States to op~n a "new office ,"
it must show that it is prepared to commence doing business immediatelyupon approval so that it will support
a manager or 'executive within the one-year timeframe. This evidence should demonstrate a reali~tic ' ,
expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental
. . I • •
stage to full operat ions, where there would be an.actual need for a manager or executive who will primarily
perform qualifying duties. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time offilirig the petition to open a
"new office," a petit ioner must affirmatively demonstrate that it has acquired sufficient physical premises to
house the new office and that it will support the beneficiary in a managerial or executive position within one
year of approval. Specifically, ' the petitioner must describe the nature of its business , its ' proposed
organizational 'structure and financial goals, and .submit evidence to show that it has the ' financial ability to
remunerate the beneficiary and commence doing business in the United States. Id. ' The regulations require the
petitioner to disclose the 'business plans and 'the size of the United States investment , and thereby establish
that the proposed enterprise will support ali ~x e cut i ve 'or managerial position within ~neyear of the approval '
of the petition: " . '., ' . "
EAC 07 10752616
Page 5
The nonimmigrant petition was filed on March 5, 2007. On the Form 1-129, the petitioner indicated that the
beneficiary would se~e as general manager of the new U.S. company with the following responsibilities :
. .
Direct and coordinate activities of businesses or departments concerned with the production ;
pricing, sales, ~r distribution , of products . Review financial statements , sales and activity
reports, and other , performance data to measure productivity and goal achievement and to
determine areas needing cost reduction and program improvement.
The petitioner also attached an "employment proposition" for the beneficiary , which indicated his proposed
duties as follows:
Sale ofdoors, windows .and shutters
Installation of wood floors
External and internal painting
Garden and lawn maintenance
Sale of furniture
The petitioner did not subm it a business plan or describe the petitioner's proposed staffing levels for the first
year of operations. Accordingl y, the director issued a request for additional evidence on March 19, 2007'. The
director instructed the petitioner to submit the following: (1) .a breakdown of the number of hours. to be '
devoted to each of the beneficiary's proposed duties on a weekly basis; (2) an organizational chart for the U .S.
entity and complete position descriptions for all proposed employees; ' (3) a business plan providing specific
dates for each proposed actionduring the first year of operations ; and (4) evidence to show how the U.S .
company will grow to be of sufficient size to support a managerial or executive position .
. In a response received on April 19, 2007, the petitioner provided the following description of the beneficiary's
proposed duti~s: .
Training of the salesmen:
Briefing and check ing the work of employees:
Prospection [sic] to finrlnew customers:
'. Filing proposals and sales:
Control of each file :
Orders to suppliers:
Schedule of the installations :
Control the installations atcustomers' houses:
Financial duties :
Preparation of all documents for the c.P .A.:
6 hours
6 hours
12 hours
6 hours
2 hours
3 hours
1 hour
6 hours
2 hours
2 hours
The petitioner further expla ined the beneficiary's proposed role as follows :. , .
[The benefici ary] has to hire some employees, teach them to the firm's pol icy and manage
them day-to-day. He needs a visa to work because he must show to the employees how to
work: the better example isto show to the employees how to do their job. Also, he has to be
in direct contact with the suppliers each week. And he also needs to find self-employed fitters
EAC 07 10752616
Page 6
who have good experience and reputation tomake the installations. He has to schedule the
installations with the customers. Therefore, he needs to meet the customers imd to control the
quality of the installations in their houses .
ill ' a separate ,statement, the petitioner .indicated that the beneficiary would spend 70% of his time on
executive /managerial duties and 30% ofhis time to other, non-executive functions.
The petitioner indicated that the beneficiary would hire two ,salesmen to find prospective customers, make
proposals and sign sales contracts, as well as two fitters to perform installations , and maintenance work at
customers' houses. The petitioner stated that these employees would be paid on a commission 'basis and'
would be able to work autonomously by the end of the first year of operations, thus relieving the beneficiary
from performing, sales and installation work. The petitioner's 'organizational chart also depicts a C.P.A.
working under the beneficiary's supervision.
The petitioner submitted a description of the proposed business; noting that initially , the. petitioner would .
concentrate on the' sale and installation of roll-down hurricane shutters , but would also offer secondary
products and services such as painting and installation Offlooring, doors , etc. The petitioner noted that the
company would market its products and services by using door-to-door and telephone prospecting, flyers and
'advertisements, and exhibitions in shopping malls and commercial areas.
Finally , the petitioner submitted a one-page business plan for the year October 2006 through October 2007.
The plan indicates that as of October 2007, the company would employ the beneficiary, two salesmen and two
fitters.
The director denied the petition on April 27 , 2007 , concluding that the petitioner failed to establish that the
beneficiary would be employed in a primarily managerial or 'executive capacity within one year. The director ' ,
noted that, despite the beneficiary's job title; he would be working at a level no higher than that of a first-line
supervisor of non-professional employees. The director found upon review of the totality of the evidence that
there. would be limitedgrowth for the business, leaving the beneficiaIf to perform the company's marketing,
advertising, purchasing , bookkeeping and other non -managerial level tasks at the end of the first-year of
operations.
, ,
On appeal , counsel asserts that the beneficiary's title "is of an Executive ,Manager which is a managerial or
executive capacity , as defined in Section 10 I(a)(44)(a)(b) [sic]." Counsel contends that the petitioner "has the
potential growth to accommodate a managerial staff, supervisors and professional level employees, prior to
the end of it's [sic] first year of operation." Counsel emphasizes that shutters are a growing necessity in
Florida, and therefore, such businesses are well-known to be profitable in the state . Counsel also notes a
factual error in the director's decision with respect to the date of establishment of the U .S. company.'
I The AAOnotes that the director incorrectly indicated that the u.S. company was established on November
20, 2007 . The correct date is October 26, 2006 . This error, while regrettable, did not impact the director's
analysis of the substantive issue of whether the beneficiary would be employed in a managerial or executive
capacity within one year.
EAC 07 10752616
Page 7
In an attached statement , the petitioner states that it feels the beneficiary's proposed role was "badly
expressed" due to cultural and/or language differences. The petitioner states that in France, it is understood
that the owner of the company will manage all employees and activities, but will delegate tasks to subordinate
supervisors who actually manage the lower-level workers who perform routine duties. The petitioner submits
various press releases and articles regarding the hurricane shutter industry in Florida to support its claims that
the U .S. company will engage in a high-growth industry and thus will quickly expand to the point where it
can support the beneficiary in a primarily managerial or executive capacity.
With respect to the U.S. company's staffing structure , the petitioner states the following:
As planned inthe business plan we provided , a first salesman will be hired and trained by the
beneficiary. This salesman No 1 will become around July 2007 the SALES MANAGER and
will manage the first fitter and the second salesman. In the same way, the first fitter will
become the TECHNICAL MANAGER andwill manage the second fitter . After that, around
October ~007 , the technical manager will .manage a second fitter and the second salesman
will become LEADER SELLER and willmanage three new salesmen . Also , the beneficiary
manages the c.P .A. who himself manages a clerical officer. These individuals will relieved
[sic] the beneficiary from the non-managerial tasks .
The petitioner's .statement includes proposed organizational charts showing SIX employees under the
beneficiary's supervision as ofJuly 2007, and eleven employees by Oct~ber 2007.
Upon review , and for the reasons discussed herein , the petitioner has not 'established that the beneficiary
would be employed in a primarily managerial or executive capacity within one,year. .:
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.ld.
The petitioner's .initial description of the beneficiary's proposed duties . suggested that he would directly
provide the sales 'and services of the organization rather than performing any managerial or executive duties.
The petitioner indicated that he would sell doors, windows and shutters , install wood floors, sell furniture,
paint, and perform garden and lawn maintenance services . 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 enume rated managerial or executive dutiesjj -see also Matt er of Church Scientology
Int'l. , 19 I&N Dec. 593 , 604 (Comm. 1988). ' However , the AAO notes that the initial description of the
. beneficiary's duties was essentially the same as the initial description of the petitioner's business and appeared
to provide more of an overview of the services to be provided by the new company rather than a description
of the beneficiary's actual proposed duties. ' . ,
Accordingly, the directorrequested that the petitioner clarify the beneficiary's duties and the amount of time
he would devote to them. As noted by the director , the petitioner's response suggested that the beneficiary
would primarily perform a combination of operational and first-line supervisory duties, rather than
EAC 07 10752616
Page 8
performing the high-level managerial or executive responsibilities set forth in the statute. For example, the
petitioner indicated that the beneficiary would devote the largest portion of his time, 12 hours per week, to
. "prospection [sic] to find new customers ," a duty which could reasonably involve market research , advertising
,and soliciting sales, all of which are non-qualifying duties. Therefore , while the petit ioner stated that th e two
sales employees would relieve the beneficiary from direct ii1\rolvement in sales within one year, the
beneficiary's job description indicates otherwise.
The beneficiary -would devote an additional 12 hours per week to "checking the work of the employees," and
, controlling the quality of installations at customer's houses ., These duties suggest that the beneficiary will act
as .a first-line supervisor to the petitioner's .commissioned sales people and installation workers. As the
petitioner has not offered any evidence that any of the beneficiary's proposed subordinates would be
professionals , these supervisory duties must also be' deemed lion-managerial in nature. Contrary to the
common understanding of the word "manager," the statute plainly states that a "first line supervisor is not
considered to be acting in a managerial capac ity merely byvirtue of the'supervisor's supervisory dut ies unless
the employees supervised are professional." Section 101(a)(44)(A)(iv)of the · Act; 8 C.F .R. §
214.2(l)(1)(ii)(B)(2). ' '
Furthermore, the beneficiary's responsibilities for "filling proposals and sales," "control of each file," "orders
to suppliers," "financialduties ," and "schedule ,of installations," which account for an additional 14 hours of ,
the beneficiary's time, are operational and administrative tasks required to provide the pet itioner's services and
'have not been shown to be managerial in nature . TIle petitioner does not indicate that any of the ~eneficiary's
proposed subordinates will relieve the beneficiary from performing these tasks . Overall, based on the
petitioner's representations , the beneficiary's duties will primarily, be composed of non-managerial and non­
'executive functions . Again, an employee who "primarily " performs the tasks necessary to produce a product
. . .' I
or to provide serv ices 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 a/Church Scientology Int'l ., 19 I&N Dec. at 604 .
The definitions of executive and . managerial capacity have . two separate requirements . First, the petitioner
must show that the beneficiary performs the high-level respon sibilities that are 'specified "in the definitions. :
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities .and
does not spend a majority of his or her time on day-to-dayfunctions. Champion World , Inc. v. INS , 940 F.2d
1533 (Table), 1991 WLl44470 (9th Cir. July 30 ,1991). The AAO does not doubt that the beneficiary would ,
exercise authority over the U.S . company as its general manager and owner; however, the fact that the
, beneficiary owns and ' manages a business does not necessar ily establish eligibility for classification as an
intracompanytransferee in a managerial or executive capacity within the meaning of sections 101(a)(15)(L)
of the Act. See 52 Fed. Reg. 573~" 5739 (Feb . 26, 1987). Again, the actual duties themselves reveal the true
nature of theemployment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd , 905 .
F.2d 41 (2d. Cir. 1990) . '
On appeal, the petitioner seeks to revise its proposed staffing structure in an effort to establish that the
beneficiary would manage asubordinate staff of supervisors , professionals or managers . As noted above , the
petitioner submits a new proposed organizational chart indicating that the beneficiary would supervise three
tiers of lower-level'employees including a sales manager, technical manager, lead seller, two fitters and three
salespeople by October 2007. The petitioner implies that there was some misunderstanding because the
EAC 07 10752616
Page 9.
petitioner previously described the beneficiary's role according to French conventions and believed it was
understood that the beneficiary would delegate all non-managerial tasks to lower-level supervis?rs and
employees . The petitioner's assertions are not persuasive. There was no .ambiguity in the petitioner's business
. plan or previous statements indicating that the petitioner intended to hire exactly four non-supervisory , non­
professio~alemployees, two sales 'people and two fitters , during the first year of operations. On appeal ,.a
petitioner cannot offer a new position to the beneficiary , or materially change a position's title, its le vel 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 classificat ion as a
managerial or executive position.:,Matter ofMichelin 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
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The
organizational chart 'submitted on appeal will not be considered. ,
The AAO acknowledges 'the evidence submitted on appealregarding the increasing demand for hurricane
shutters in Florida . However, th~Jact that-the petitioner seeks to start 'a business in a high-growth industry has
little bearing on whether theU .S. company will grow to a point where it will support the beneficiary in a
primarily managerial or, executive position within one year. Such a determination " as required by the
regulations, inust be based upon the petitioner's evidence related to the beneficiary's job duties, the proposed
nature and scope of the office ; its organizational structure and financial goals, and the size of the United
States investment , rather than on external industry factors. As noted by the director, the totality of the
evidence does not support a finding that the U.S . company will achieve the required growth .
. Although not specifically referenced by the director , another factor supporting this conclusion is the lack of
evidence of the ,size of the investment -in the United States entity. When filing a petition for a beneficiary who is
to be employed in a new office ,the petitioner is required to submit evidence to 'establish the size of the United
States investment and the financial ability to commence doing business in the United States. See 8 C.F.R . §
214.2(I)(v)(C)(2) .
'The petitioner indicated that the beneficiary transferred $2,500 from the foreign entity's account. However,
the petitioner has not identified its anticipated start-up costs or capital requirements , and it does not appear
that these funds would be sufficient for the purposes of commencing operations in the United States. Going
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden .of
proof in these proceedings. Matter of'So ffi ci, 22 I&N Dec. 158 , 165 (Comm. 1998) (citing Matter of
TreasureCraft of California, 14 I&NDec . 190 (Reg. Comm. 1972)) . While it is true that the regulations do
not establish a min imum investment amount , the AAO cannot find that the company has sufficient funds to
commence business operations in the United States.
Overall , the minimal evidence submitted with this petition does . not demonstrate a realistic expectation that
the enterprise will succeed and rapidly expand as it moves away from the developmental stage to full
operations, where there would be an actual need for a manager or execut ive who will primarily . perform
qualifying duties. Based on the foregoing di scussion , the petitioner has not established -that the U:S. entity
would support the beneficiary in a managerial or executive capacity within one year of the approval of the
petition. For this additional reason , the appeal will bedismissed.
,- ..
EAC 07 10752616
Page 10
Beyond the decision of the director, the record does not establish that the petitioner has secured sufficient
physical premises to house the new 'office. At the time of filing on March 5 , 2007, the petitioner indicated
that the beneficiary's worksite would be located at 34650 U .S. Highway 19 North , Suite 108, in.Palm Harbor ,
Florida. The petitioner provided a letter from Peck & Jenkins C.P .A., P.A., dated February 1, 2007, stating
, that for a monthly fee of $150, Peck &. Jenkins would receive the petitioner's incoming mail and deliveries ,
provide bookkeeping services using documents provided by the pet itioner, and provide an empty office for
the petitioner's use in meeting with clients . Based on this evidence, the petitioner had not secured physical
premises for the day-to-day operation of its business. Rather, it had contracted for mail service and the option
.to use an office for client meetings if so desired. '
The director subsequently requested evidence to .'establi; h that the petitioner has secured sufficient physical
premises to house the new office, including photographs of the interior and exterior of all premises secured . In
response, the p~titioner submitted a copy of a lease agreement for an 180 square foot office located at 10204
Ridgeway Drive, Port Richey ; Florida. The lease agreement was signed on March 2,2007 , prior to the filing
of the petition, so it is unclear why the petitioner did not initially submit this agreement , and instead indicated
that the beneficiary would work at a different address. Doubt cast on any aspect of the petitioner's proof may
undermine the reliability and sufficiency of the remaining evidence offered in support of the visa petition .
Matter of Ho, 19 I&N, Dec. 582, 591 (BIA 1988). The photographs submitted do not clearly identify the
location or size of the office. Furthermore , even if the .AA O accepted the lease agreement, the petitioner does
not appear to have secured suffic ient space for its proposed staff of five,employees, nor does it have storage
.space for the shutters and other materials it intends to sell and install. 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 Cet;lterdoes 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), afJ'd.345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997 , 1002 n. 9 (2d Cir. 1989)(noti~g that the AAO reviews
appeals on a de novo basis). '
The petition 'will be' d~nied and the appeal dismissed 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 U.S.c. § 1361.
Here, that burden has not been met.
'i
,ORDER: The,appeal is dismissed.