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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: WAC 08 075 50341 Office: CALIFORNIA SERVICE CENTER 
 Date: OCT 0 1 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 08 075 50341 
Page 2 
DISCUSSION: The Director, California 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 president as an L- 
1 A nonimmigrant intracompany transferee pursuant to section 1 O 1 (a)( 1 5)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
California and is allegedly an agent that facilitates the sale of U.S. industrial and electrical machineries, 
power lines, and vessels to companies located in the Philippines. 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 that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
On appeal, counsel to the petitioner asserts that the director's decision was erroneous, claiming that the 
beneficiary's duties are primarily those of an executive or manager. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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. 5 214.2(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. 
(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 hirnlher 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. 
WAC 08 075 50341 
Page 3 
The regulation at 8 C.F.R. 9 214.2(1)(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 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 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. 9 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 
(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. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
WAC 08 075 50341 
Page 4 
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. 
In support of the Form 1-129, the petitioner provided a letter dated December 10,2007 in which the petitioner 
indicated that its organization at the time of filing was comprised of the beneficiary in the position of 
president, one consultant of operations, one consultant of development, and one staff person. The petitioner 
provided annual salaries and brief position descriptions for each of the beneficiary's subordinate employees. 
The petitioner also provided the following proposed position breakdown for the beneficiary: 
40% 
 Plans, develops and establishes the key and strategc directions of the [clompany and 
the [olrganization in accordance with the [bloard directives and [clorporate charter. 
30% 
 Directs and coordinates formulation and implementation of financial programs to 
provide funding for continuous operations and to maximize returns on investments 
and to increase productivity. 
30% 
 Directs and coordinates formulation of strategies for potential and new business 
opportunities specifically attuned to the needs of the power sector and all related 
industries. 
The petitioner also provided an organizational chart illustrating a hierarchy consisting of two tiers-the top- 
most tier attributed to the beneficiary as head of the organization and the second tier attributed to the 
beneficiary's three claimed subordinates. 
After reviewing the documentation submitted in support of the Form 1-129, Citizenship and Immigration 
Services (CIS) issued a request for additional evidence (RFE) dated January 28, 2008, instructing the 
petitioner, in part, to provide a more detailed description of the proposed job duties the beneficiary would 
perform in the United States under an approved petition as well as a percentage of time that would be allotted 
to each of the listed duties. The petitioner was also asked to provide the following additional documentation: 
1) quarterly wage reports for each of its employees for the prior four quarters; 2) the U.S. company's payroll 
summary; and 3) the U.S. company's W-2 and W-3 forms establishing the wages paid to its claimed 
employees. 
In response, the petitioner provided a letter dated February 7, 2008 in which the petitioner explained its 
business purpose and provided the following additional percentage breakdown of the beneficiary's proposed 
WAC 08 075 50341 
Page 5 
position in the United States: 
10% 
 [Pllan, develop and establish contact with U.S. [s]uppliers[.] 
30% 
 [Clonfers with suppliers and customers abroad to [dletermine the need for the 
products connecting them to the customer and vice versa[.] 
20% 
 [Sltudy the financial programs of suppliers and import the same to the customer[s] in 
the Philippines and vise [sic] versa[.] 
20% 
 Determine the need of the customers, their concerns and financial capacities and 
imports the same to the supplier for a clearer "meeting [ofl the mind" and thus 
closing the sales[.] 
10% 
 Direct and coordinates [sic] all potential[ly] new products for possible marketing to 
the Philippines[.] 
10% 
 Evaluate the performances of the U.S. employees and consultants[.] 
The petitioner also provided its DE6 payroll statements for all four quarters in 2007. It is noted that the 
payroll statement for the first and third quarters of 2007 indicate that the petitioner did not have any paid 
employees either at the time the Form 1-129 was filed or during the three-month period from July through 
September 2007. The payroll summaries for the second and fourth quarters identify the beneficiary as the 
petitioner's only paid employee. Although the petitioner provided a Form 1099 for 2007 showing $6,000 of 
miscellaneous income paid to, whom the petitioner has identified as the consultant in 
charge of development, there is no indication as to this individual's specific period of employment. Thus, 
there is no way of determining that services were enjoyed by the U.S. entity at the time the 
Form 1-129 was filed or whether he was ever truly an employee of the petitioner. The petitioner has not 
provided documentation to support its claimed employment of an office staffer and a consultant for 
operations. 
On February 26, 2008, the director issued a decision denying the petitioner's Form 1-129. The director noted 
the petitioner's failure to provide documentation to establish its employment of the staff named in the 
organizational chart previously submitted. While this statement is primarily true, the AAO does note the 
director's oversight in failing ;o acknowledge the petitioner's submission of 
 Form 1099 for 
which establishes that the petitioner paid for ! services in 2007. Nevertheless, as noted above, 
the petitioner provided no documentation establishings employment at the time the Form 1-129 
was filed. The director further found that the petitioner provided an overly broad description of the 
beneficiary's proposed employment, failing to convey a meaningful understanding of the specific tasks the 
beneficiary would carry out in order to meet the business objectives set out for his position. 
On appeal, counsel explains the reason for the beneficiary's frequent and extended absences from the United 
States and provides an overview of the issues addressed in the RFE. Counsel also explains that it was never 
the intent of the petitioner to hire a large support staff, as the bulk of the sales activity takes place in the 
WAC 08 075 50341 
Page 6 
Philippines, where the end users of the U.S. products are located. Counsel claims that the purpose of 
establishing a U.S. office was to be the agent that ensures speedy communication between the U.S. suppliers 
and the Philippine clientele. Counsel goes on to discuss the claimed qualifying relationship between the U.S. 
entity and the beneficiary's foreign employer. Finally, counsel addresses the issue of the beneficiary's 
proposed employment, claiming that the petitioner has maintained all along that most of the individuals 
assisting the beneficiary are hired as consultants and that there is only one employee acting as an office 
staffer. However, in reviewing the submitted documentation, the AA0 finds that the petitioner has failed to 
document the single office staffer to whom counsel refers, and the only evidence that the petitioner paid 
anyone other than the beneficiary is the Form 1099 discussed above, which only establishes that the petitioner 
paid h $6,000 in miscellaneous income for work performed in 2007. There is absolutely 
no evidence establishing that the petitioner hire- either as a consultant or in any other capacity; 
nor is there any evidence establishing that the petitioner employed any of the individuals named in its 
organizational chart as of January 2008 when the Form 1-129 was filed. 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 of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel goes on to discuss the types of discretionary decisions the beneficiary has made in what counsel 
claims is an executive capacity. Specifically, counsel refers to the beneficiary's decision to buy the property 
where the petitioner's office is held, his authority to negotiate and sign contracts with U.S. suppliers, and the 
beneficiary's role in general in promoting the petitioning entity to U.S. suppliers. Contrary to counsel's 
understanding, however, the beneficiary's discretionary authority alone does not define the beneficiary's 
proposed employment as being within a qualifying managerial or executive capacity. While discretionary 
authority is one aspect of a manager or executive within the relevant statutory definitions, a determination of 
whether one is primarily acting in a managerial or executive capacity is based on a number of factors. 
First and foremost, when examining the executive or managerial capacity of the beneficiary, the AAO will 
look to the petitioner's description of the job duties. See 8 C.F.R. 3 214.2(1)(3)(ii). In so doing, the AAO 
attempts to determine which specific tasks would occupy the primary portion of the beneficiary's time. The 
AAO will also examine the petitioner's organizational hierarchy and its employment of a support staff. An 
analysis of the petitioner's organization and the support staff employed therein allows the AAO to determine 
whom, if anyone, the beneficiary supervises and whether the petitioner is adequately staffed to relieve the 
beneficiary from having to primarily perform non-qualifying tasks. In the present matter, an examination of 
these factors indicates that counsel's assertions fail to overcome the director's adverse findings. 
With regard to the beneficiary's job duties, the RFE specifically instructed the petitioner to be specific in 
relaying this information, as it is the actual duties themselves that tend to reveal the true nature of 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. 
Cir. 1990). In the present matter, the job description provided in response to the RFE strongly indicates that 
the beneficiary's time would be primarily devoted to carrying out those tasks associated with providing the 
services offered by the petitioner. Namely, the petitioner indicated that 10% of the beneficiary's time would 
be spent planning, developing and establishing contacts with U.S. suppliers; 30% of the beneficiary's time 
WAC 08 075 50341 
Page 7 
would be spent communicating with suppliers in the United States and customers abroad in order to deliver 
the right products to the foreign clientele; and another 20% of the beneficiary's time would be spent 
determining each customer's needs, thereby suggesting further communication between the beneficiary and 
the foreign customers. It is noted that 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). While the above statements lack the specific job duties requested in the RFE, 
they provide sufficient information to indicate that at least 60% of the beneficiary's time would be spent 
actually providing the services of the petitioning entity. 
Next, an examination of the other relevant factors further indicates that the petitioner does not have the 
organizational complexity or the support staff to relieve the beneficiary from having to primarily focus his 
time and efforts on the performance of non-qualifying tasks. A company's size alone, without taking into 
account the reasonable needs of the organization, may not be the determining factor in approving a visa for a 
multinational manager or executive. See 101(a)(44)(C) of the Act. However, in reviewing the relevance of 
the number of employees a petitioner has, federal courts have generally agreed that CIS "may properly 
consider an organization's small size as one factor in assessing whether its operations are substantial enough 
to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 (9~ 
Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. 
Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 
29 (D.D.C. 2003). As previously discussed, the petitioner in the present matter has provided an illustration of 
a simple hierarchy comprised of two levels--one level attributed to the beneficiary himself and the other to 
the support staffer and three remaining consultants. It is unclear whether any of these employees can be 
deemed managerial, supervisory, or professional, nor has the petitioner provided a sufficiently detailed 
description of the beneficiary's job duties such that would allow the AAO to determine how and to what 
extent the beneficiary would be involved in supervising the work of these claimed subordinates, assuming that 
their employment with the U.S. entity was not in question. 
Title 8 C.F.R. 3 214.2(1)(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. Pursuant to a comprehensive review of the information and 
documentation submitted in support of the petition in the instant matter, the MO concludes that the United 
States operation has not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. 
Additionally, the AAO finds that the petitioner has failed to establish its eligibility on the basis of additional 
factors that were not addressed in the director's decision. 
First, the MO finds that the petitioner has failed to establish that it has been doing business for the previous 
year. 8 C.F.R. 3 214.2(1)(14)(ii)(B). A visa petition which involved the opening of a "new office" may be 
extended by submitting evidence that the petitioner "has been doing business as defined in paragraph 
WAC 08 075 50341 
Page 8 
(l)(l)(ii)(H) of this section for the previous year." 8 C.F.R. 3 214.2(1)(14)(ii)(B). "Doing business" is defined 
as "the regular, systematic, and continuous provision of goods and/or services by a qualifying organization 
and does not include the mere presence of an agent or office of the qualifying organization in the United 
States and abroad." 8 C.F.R. 5 214.2(1)(l)(ii)(H). In this matter, the petitioner and counsel have both stressed 
the fact that the U.S. entity has not and would not be involved in the sales of any of the products supplied by 
the U.S. suppliers. Rather, the petitioner has described itself as "only a representative office."' Furthermore, 
even though the petitioner has been incorporated as a for-profit entity, the record lacks documentation 
establishing that the petitioner is generating any income from its role as a conduit in the sale of U.S. products 
in the Philippines and, if so, which transactions account for any income that is generated. Although the 
petitioner has provided an agency agreement, a number of business emails, product orders, and price quotes, 
there is no indication that the U.S. entity is a party to any of the business transactions indicated in these 
documents. Accordingly, the petitioner has failed to establish that it has been doing business for the previous 
year, and the petition may not be approved for this additional reason. 8 C.F.R. 8 214.2(1)(14)(ii)(B). 
Second, the petitioner has failed to establish that it and the foreign employer are qualifying organizations as 
required for a petitioner seeking to extend a "new office" petition. 8 C.F.R. 5 214.2(1)(14)(ii)(A); 8 C.F.R. 
5 214.2(1)(3)(i). Title 8 C.F.R. 4 214.2(1)(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 definitions 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, half of the entity and controls the entity." 
In this matter, the petitioner asserts that it is entirely owned by the beneficiary's foreign employer. However, the 
record is devoid of evidence confirming this assertion. Rather, the evidence on record is inconsistent with the 
petitioner's claim. More specifically, the petitioner provided a number of fund transfer receipts in response to 
the RFE in order to establish that Isometric Industrial Corp., the beneficiary's foreign employer, owns the U.S. 
entity. It is noted that only one of the fund transfer receipts shows the petitioner as the beneficiary, i.e., the 
recipient, of the funds. However, the originator of the fund transfer transaction was identified as "Fambik. 
Const. and Equip. Co. Inc.," not the entity claiming to wholly own the petitioner. Furthermore, the fund 
transfer in question took place on May 24, 2007, which is ten months after the stock certificate was issued to 
the company claiming ownership. As such, the record lacks documentation to establish that the foreign entity 
provided monetary consideration in exchange for its ownership of the petitioner's stock. Lastly, Schedule L, 
item 22(b) of the petitioner's corporate 2006 tax return makes no mention of having received $50,000 in 
exchange for issuance of its stock, as claimed in the stock transfer ledger submitted as part of "annex 1-b" in 
response to the RFE. These considerable anomalies preclude the AAO from finding that a qualifying 
relationship exists between the beneficiary's U.S. and foreign employers. It is incumbent upon the petitioner 
to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BL4 1988). 
Lastly, given the petitioner's description of its business organization and the beneficiary's proposed 
relationship to this business, it appears more likely than not that the beneficiary will not be an "employee" of 
I 
 See page three of the petitioner's response to the RFE. 
WAC 08 075 50341 
Page 9 
the United States operation. As required by 8 C.F.R. $ 214,2(1)(14)(ii)(A), the petitioner must establish that 
the prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or 
corporation or other legal entity by which the alien was employed overseas. See 8 C.F.R. 
$5 214.2(1)(l)(ii)(K) and(L) for definitions of subsidiary and afiliate, respectively. It is noted that "employer" 
and "employed" are not specifically defined for purposes of the Act even though these terms are used repeatedly 
in the context of addressing the current employment-based immigrant classification. However, section 
101(a)(44), 8 U.S.C. $ 1 101(a)(44), defines both managerial and executive capacity as an assignment withn an 
organization in which an "employee" performs certain enumerated qualifying duties. 
Furthermore, the Supreme Court of the United States has determined that where a federal statute fails to 
clearly define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." Nationwide 
Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency $ 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common- 
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254,258 (1 968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational manager or 
executive, when a worker is also a partner, officer, member of a board of directors, or a major shareholder, the 
worker may only be defined as an "employee" if he or she is subject to the organization's "control." See 
Clackamas, 538 U.S. at 449-450; see also New Compliance Manual at 2-III(A)(l)(d). Factors to be 
addressed in determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and regulations of the 
individual's work. 
Whether and, if so, to what extent the organization supervises the individual's work. 
Whether the individual reports to someone higher in the organization. 
WAC 08 075 50341 
Page 10 
Whether and, if so, to what extent the individual is able to influence the organization. 
Whether the parties intended that the individual be an employee, as expressed in written 
agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the beneficiary 
wiII be an "employee" employed in a managerial or executive capacity. The petitioner is a corporation, which 
is ultimately owned and controlled by the beneficiary, who purports to assume a role as the petitioner's 
principal. There is no evidence that any other individual has an ownership interest or is in a position to 
exercise any control over the work to be performed by the beneficiary. 
In view of the above, it appears that the beneficiary will be a proprietor of this business and will not be an 
"employee" as defined above. It has not been established that the beneficiary will be "controlled" by the 
petitioner or that the beneficiary's employment could be terminated. To the contrary, the beneficiary is the 
petitioner for all practical purposes. He will control the organization; he cannot be fired; he will report to no 
one; he will set the rules governing his work; and he will share in all profits and losses. Therefore, based on 
the tests outlined above, the petitioner has not established that the beneficiary will be "employed" as an 
"employee." For this additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 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). 
Accordingly, 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 eligbility 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.