dismissed L-1A Case: International Marketing And Employment

U.S. Department of IIarneland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
 U. S. Citizenship 
prevent clearly unwarranted and Immigration 
inpsion ofpersonal pnvacj 
 Services 
FILE: SRC 05 139 52316 Office: TEXAS SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. $j 1 101(a)(15)(L) 
ON 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. 
g~obert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 05 139 52316 
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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 appeal will be dismissed. 
The petitioner, a Georgia limited liability company, claims to be in the international marketin 
employment business. The petitioner states that it is an affiliate o 
located in Bulgaria. Accordingly, the United States entity 
Services (USCIS) to classify the beneficiary as a nonimrnigrant intracompany transferee (L-1A) pursuant 
to section 101(a)(15)(L) of the Act (the Act), 8 U.S.C. 5 1 101(a)(15)(L). The beneficiary was initially 
granted a one-year period of stay to open a new office in the United States and was subsequently granted 
an extension of status. The petitioner now seeks to extend the beneficiary's stay in order to continue to 
fill the position of general manager. 
The director denied the petition concluding that the record contains insufficient evidence to demonstrate 
that the beneficiary will be employed in a managerial or executive capacity. The director noted that the 
U.S. company did not have a "sufficient support staff to relieve the beneficiary from having to perform 
non-qualifying duties." 
On appeal, counsel for the petitioner notes that this is the petitioner's second request for an extension on 
behalf of the beneficiary and requests that the director follow the instruction provided in a U.S. 
Citizenship and Immigration Services (USCIS) memorandum written by William R. Yates, Associate 
Director of Operations dated April 23, 2004. Counsel for the petitioner asserts that since there has been 
no material change in circumstances since the approval of the first extension, the director must give 
deference to the earlier L-1 approval as noted in the memorandum. Counsel submits a brief and 
supporting documentation in support of the appeal. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. fj 214.2(1)(3) further 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. 
SRC 05 139 52316 
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(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 himher 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 issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary 
will be employed in a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment withn 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 withn 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. $ 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment withn 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-malung; and 
SRC05 13952316 
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(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonirnmigrant petition was filed on April 19,2005. The Form 1-129 indicates that the beneficiary will be 
employed in the position of general manager for the petitioner. The beneficiary's proposed duties in the U.S. 
are described as the following: "manage operations of international [marketing] & [employment] firm." The 
petitioner indicated that the current number of employees in the United States is three. In a letter dated April 
18, 2005, counsel for the petitioner stated that the beneficiary "has broad managerial control and authority 
over the development and implementation of policy and procedures," "oversees operations at a senior level 
withn the organization's hierarchy," and "exercises discretion over the day-to-day operations of the 
marketing, recruitment and business development functions." 
On April 25, 2005, the director determined that the petitioner did not submit sufficient evidence to process 
the petition. The director requested that the petitioner submit additional evidence in support of its petition. In 
part, the director requested the following: a definitive statement for the position the beneficiary will occupy in 
the United States including a list of all duties, the percentage of time spent on each duty, the number of 
subordinate managers/supervisors or other employees who would report directly to the beneficiary and a 
description of their job duties, and the qualifications required for the position to be held by the beneficiary. In 
addition, the director requested a copy of the U.S. company's organizational chart. 
In response to the director's request for evidence, the petitioner submitted a detailed job description for the 
duties that will be performed by the beneficiary. The duties are as follows: 
Manages the business and controls how the organization operates. (60%) 
Planning and administering international programs (5%) 
Develops corporate structures and policies (2%) 
Directs and coordinates employees activities (2%) 
Finds and develops alliances with suitable business partners, raises money to grow her 
organizations, and makes systematic changes, as needed, to keep her businesses profitable. 
(3%) 
Brings a measure of order and purpose to her organizations. (1 %) 
Communicates the value of her organization to the outside world, marketing, strategy, and 
goals. (2%) 
Sets project goals (2%) 
Makes hiring decisions (1 %) 
Provides leadership and coordination of services for international students and programs, 
including advisement and monitoring of U.S. and UK government regulations and policies 
for non-immigrants. (3%) 
Develops and oversees programs to provide international experience opportunities for 
European students and faculty including intemational exchange and study abroad. (5%) 
Develops and monitors international agreements, evaluates programs, and promotes 
intemational opportunities with US employers and companies (3%) 
Represents the company and participates in regional, and national professional and 
organizations for international exchange. (1 %) 
SRC 05 139 523 16 
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Participates in the establishment, organization, and implementation of short- and long-range 
goals, objectives, policies, and operating procedures; monitors and evaluates program 
effectiveness and effects changes required for improvement. (2%) 
Supervises staff support personnel, to include recommendations for hiring, firing, 
performance evaluation, training, work allocation, and problem resolution. (1%) 
Manages the annual budget planning process and regularly monitors expenditures (1%) 
Oversees the implementation and operation of the U.S. government SEVIS (Student and 
Exchange Visitor Information System) at the Universities overseas and ensures compliance 
with federal regulations and policies. (1%) 
Represents the company to various institutional divisions/departments as well as externally 
to governmental agencies. (1 %) 
The petitioner also submitted an organizational chart of the U.S. company and a brief job description for 
both of the beneficiary's subordinates. The organizational chart for the U.S. company indicates that the 
beneficiary will supervise a vice president and a bookkeeper. The chart also indicates that the beneficiary and 
the two additional employees will supervise the international exchange department which handles summer 
programs, student exchange programs and seasonal worker programs; and the marketing department; and the 
staffing services department. According to the brief job descriptions, it appears that the vice president will 
assist the beneficiary and will oversee the marketing operations of the U.S. company, and the bookkeeper will 
direct and manage the "financial programs and supporting information systems of the company, to include 
budgeting, receipt of revenue, expenditure of funds, and conservation of assets." 
The director denied the petition on August 30,2005 on the ground that the petitioner did not establish that 
the beneficiary will be employed in a primarily managerial or executive capacity. The director also noted 
that the evidence does not support a finding that the petitioner will be supervising a subordinate staff of 
professionals or managers. 
On appeal, on the Form 1-290B, counsel for the petitioner asserts the following: 
1. The examiner erred in failing to defer to a prior determination of eligibility. The 
instant application was for a second extension of stay. 
2. The examiner failed to consider the substantial evidence submitted of the managerial 
nature of the beneficiary's position, including the evidence of the employees and 
contractors in the US and abroad. 
3. The examiner erred in finding that the position in question was not managerial in 
nature. 
Counsel also submits a brief indicating that the beneficiary has been granted L-1A nonimmigrant status from 
April 2002 until April 2005 and "there has not been a material error, substantial change in circumstances, or 
new material information in the petition filed to extend the L-1A nonirnmigrant status on behalf of the 
beneficiary." Counsel for the petitioner requests that the director follow the guidelines for adjudicating a 
second extension for L-1A status as outlined in a USCIS interoffice memorandum by William R. Yates, 
Associate Director for Operations dated April 23,2004. Counsel for the petitioner quotes the following from 
the memo: 
SRC 05 139 523 16 
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In matter relating to an extension of nonimmigrant petition validity involving the same 
parties (petitioner and beneficiary) and the same underlying facts, a prior determination by 
an adjudicator that the alien is eligble for the particular nonimmigrant classification sought 
should be given deference.. . [A] material error, a substantial change in circumstances, or 
new material information must be clearly articulated in a request for evidence or decision 
denylng the benefit. 
Memorandum of William R. Yates, Associate Director for Operations, USCIS, The SigniJicance of a Prior 
CIS Approval on a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding 
Eligibility for Extension of Petition Validity (April 23,2004) ("Yates Memorandum"). 
Counsel's reliance on the Yates Memorandum is misplaced. Counsel's assertion is not persuasive. It must 
be emphasized that each nonimmigrant petition filing is a separate proceeding with a separate record and 
a separate burden of proof. See 8 C.F.R. $ 103.8(d). In making a determination of statutory eligibility, 
CIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. $ 
103.2(b)(16)(ii). Despite any number of previously approved petitions, CIS does not have any authority 
to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act. 
While CIS approved two other petitions that had been previously filed on behalf of the beneficiary, the 
prior approvals do not preclude CIS from denying an extension of the original visa based on reassessment 
of beneficiary's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 
(5th Cir. 2004). If the previous nonimmigrant petitions filed by the petitioner's predecessor company 
were approved based on the same unsupported assertions that are contained in the current record, the 
approvals would constitute material and gross error on the part of the director. Due to the lack of 
evidence of eligibility in the present record, the AAO finds that the director was justified in departing 
from the previous approvals by denying the present request to extend the beneficiary's status. As 
discussed below, the evidence submitted fails to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity under the extended petition. 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any 
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomety, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). CIS memoranda merely articulate internal 
guidelines for CIS personnel; they do not establish judicially enforceable rights. An agency's internal 
personnel guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon 
which [they] may rely." Lou-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. 
OrNeill, 806 F.2d 1262, 1264 (5th Cir. 1987)). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision 
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
SRC 05 139 52316 
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Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a managerial or executive capacity. 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. 9 
214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be performed 
by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high level responsibilities 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-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Here, while the beneficiary evidently exercises discretion over the day-to-day operations of the business, 
the petitioner's description of her proposed duties suggest that the beneficiary's actual duties include a 
number of non-managerial and non-executive duties. 
The beneficiary's proposed job description, while lengthy, is comprised of vague duties such as the 
beneficiary "manages the business and controls how the organization operates," "develops corporate 
structures and policies," "brings a measure of order and purpose to her organizations," and "participates in the 
establishment, organization, and implementation of short- and long-range goals, objectives, policies, and 
operating procedures; monitors and evaluates program effectiveness and effects changes required for 
improvement." The petitioner does not explain how the beneficiary will perform these requirements or what 
specific tasks are involved. The AAO will not speculate as to what specific tasks the beneficiary performs to 
"manage the business" or "control how the organization operates." Since this broad responsibility accounts 
for 60 percent of the beneficiary's time and has not been explained in any detail, it is impossible to determine 
that the beneficiary's duties are primarily managerial or executive in nature. 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 provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. 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), affd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the job duties required of the beneficiary include non-qualifying duties such as the beneficiary 
"finds and develops alliances with suitable business partners, raises money to grow her organizations, and 
makes systematic changes, as needed, to keep her businesses profitable," "communicates the value of her 
organization to the outside world, marketing, strategy, and goals," "sets project goals," "provides 
leadership and coordination of services for international students and programs, including advisement and 
monitoring of U.S. and UK government regulations and policies for non-immigrants," "develops and 
oversees programs to provide international experience opportunities for European students and faculty 
including international exchange and study abroad," and "develops and monitors international 
agreements, evaluates programs, and promotes international opportunities with US employers and 
companies." It appears that the beneficiary will devote some potion of her time to providing the services 
of the business rather then directing such activities through subordinate employees. An employee who 
"primarily" performs the tasks necessary to produce a product or provide a service is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
SRC05 13952316 
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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 (Cornrn. 1988). 
Overall the job descriptions provided by the petitioner are too vague to convey an understanding of the 
duties the beneficiary performs, such that they can be classified as managerial or executive in nature. 
Accordingly, the director reasonably considered the petitioner's staffing levels in order to determine if the 
company's organizational structure supports the petitioner's claim that the beneficiary will be employed 
in a primarily managerial or executive capacity. 
As required by section lOl(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, CIS must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. To establish that the reasonable needs of the organization justify the beneficiary's job 
duties, the petitioner must specifically articulate why those needs are reasonable in light of its overall 
purpose and stage of development. In the present matter, the petitioner has not explained how the 
reasonable needs of the petitioning enterprise justify the beneficiary's performance of non-managerial or 
non-executive duties. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary 
be "primarily" employed in a managerial or executive capacity as required by the statute. See sections 
10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 10 1 (a)(44). The reasonable needs of the petitioner may 
justify a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 
90 percent, but those needs will not excuse a beneficiary who spends the majority of his or her time on 
non-qualifying duties. 
According to the U.S. company's organizational chart submitted by the petitioner, the United States 
company employs the beneficiary as presidentlgeneral manager, and she supervises the vice president and 
the bookkeeper. In reviewing the job descriptions submitted for the positions of vice president and 
bookkeeper, it appears that the beneficiary is responsible for performing the market research, contract 
negotiations and company development, and several operational tasks inherent in operating a company on 
a daily basis, such as acquiring new business, acquiring clients, negotiating contracts, and human 
resources functions. An employee who "primarily" performs the tasks necessary to produce a product or 
to provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology Int 'l., 19 I&N Dec. at 604. Based 
on the foregoing discussion, there is insufficient evidence to establish that the beneficiary would be 
employed by the petitioner in a primarily managerial or executive capacity. 
In addition, in reviewing the documentation, there are several discrepancies between the organizational 
chart of the U.S. company submitted by the petitioner and the employer's federal quarterly tax returns. 
The petitioner submitted the Form W-2 for 2004 for all individuals hired by the U.S. company which 
included the beneficiary and two additional employees who are named as the vice president and the 
bookkeeper on the U.S. organizational chart. However, in reviewing the U.S. company's Georgia 
SRC 05 139 523 16 
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Employer's and Quarterly Wage Reports for all the quarters of 2004, it appears that only one employee 
was employed for each month of 2004. The single individual receiving wages from the U.S. company for 
2004 alternated between the vice president and the bookkeeper. Although the organizational chart and the 
Form 1-129 indicates that the U.S. company has two employees in addition to the beneficiary, the state 
quarterly wage reports indicate that the U.S. company only hired one individual per month. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
In addition, although the petitioner asserts that the beneficiary is managing a subordinate staff, the record 
does not establish that the subordinate staff is composed of supervisory, professional, or managerial 
employees. See section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be 
acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees 
supervised are professional. Section 101(a)(44)(A)(iv) of the Act. The petitioner submitted an 
organizational chart indicating that the beneficiary will supervise a vice president and a bookkeeper, 
neither of whom has been demonstrated to be employed in a managerial, supervisory or professional 
capacity. It appears that the bookkeeper will be in charge of clerical, administrative and basic financial 
functions. Thus, the petitioner does not establish that the subordinate staff is composed of supervisory, 
professional or managerial employees. 
As noted above, the U.S. organizational chart indicates that the beneficiary, the vice president and the 
bookkeeper will supervise three departments: the international exchange department, the marketing 
department and the staffing services department. However, the petitioner did not indicate any employees 
working in these departments and it did not provide a description of the role these departments have for 
the U.S. company. In addition, the petitioner submitted several agreements with other companies and 
individuals to provide certain services for the United States company, but did not adequately explain who 
will perform the day-to-day services associated with the three departments of the U.S. company. The 
AAO cannot determine the nature and scope of the services provided by outside contractors or 
commissioned staff. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, if the position offered to the beneficiary is executive in capacity, the statutory definition of 
the term "executive capacity" focuses on a person's elevated position within a complex organizational 
hierarchy, including major components or functions of the organization, and that person's authority to 
direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. tj 1 10 l(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. The beneficiary must also exercise 
"wide latitude in discretionary decision making" and receive only "general supervision or direction from 
higher level executives, the board of directors, or stockholders of the organization." Id. A managerial or 
SRC 05 139 52316 
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executive employee must have authority over day-to-day operations beyond the level normally vested in a 
first-line supervisor, unless the supervised employees are professionals. See Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Cornrn. 1988). In the instant matter, the petitioner has not 
established evidence that the beneficiary is employed in an executive capacity with the U.S. entity. 
As discussed above, the beneficiary's job description included non-qualifying duties associated with the 
petitioner's day-to-day functions, and the petitioner has not identified any other employees within the 
petitioner's organization, subordinate to the beneficiary, who would relieve the beneficiary from 
performing routine duties inherent to operating the business. The fact that the beneficiary has been given 
a managerial job title and general oversight authority over the business is insufficient to elevate her 
position to that of an executive or manager as contemplated by the governing statute and regulations. 
Based upon evidence submitted, it cannot be concluded that the beneficiary will be performing primarily 
managerial or executive duties as its general manager. Accordingly, the petitioner has failed to 
demonstrate that the beneficiary has been or will be employed primarily in a qualifying managerial or 
executive capacity. For this reason, the appeal will be dismissed. 
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 U.S.C. 1361. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.