dismissed L-1A Case: International Trade

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prev~ clt:~dy ~mwarranted
mvasJOll C1fpet'sOllalprivacy
PUBUC~
lN~:Depaitmellt of.Homeland-Securtty
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: WAC 04 08753410 Office: CALIFORNIA SERVICE CENTER Date: DEC 04 2001
IN RE: 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. § 1 101(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office .
.. RO~
Administrative Appeals Office
www.uscis.gov
WAC 04 087 53419
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 associate
manager as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act) , 8 U.S.C. § 1 101(a)(l5)(L). The petitioner is a corporation
organized under the laws ' of the. State of California and is allegedly engaged in international trade.' The
beneficiary was initially granted a one-year period of stay to open or be employed at 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 ~~tablish that the beneficiary ~ill be
employed in the United States in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. -The director declined to treat the appeal as a motion and
forwarded the appeal 'to the AAO for review. On appeal , counsel to the petitioner asserts that the d irector
erred andthat the beneficiary 's duties are primar ily those of a manager. In support, counsel submits a brief.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section lOl(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity , or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary 's application for admission into the United
States. In addition, the beneficiary must seek to enter the Un ited States temporarily to continue rendering his
or her service s to the same employer or a subsidiary or affiliate thereof in a managerial, execut ive, or
specialized knowledge capacity . .
The regulation .at. 8 C.F.R . § 214.2(1)(3) states that an individual petition filed on Form I-129 shall be
accompanied by:
(i) Evidence that the petitioner and theorganization which employed or will employ the
. alien are qualifying organizations as defined in paragraph (i)(1)(ii)(G) of this section.
(ii) E vidence that the 'alien will be employed i~ 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.
'u should be noted that ; according to California state corporate ,r ecords, the petitioner's corporate status in
California has been "dissolved." , Therefore , as the petitioner has voluntarily elected to wind-up its operations .
and has completely dissolved its business as a corporation ; the company no longer exists and can no longer be
considered a legal entity in the United States. Therefore , if the appeal were not being dismissed for the .
reasons further explained herein , this would call into quest ion the petitioner's continued eligibility for the
benefit sought. . ' . " ,
WAC 04 087 53410
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education , training , and employment qualifies him/her to perform the intended
services in the United States ; however , the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F .R. § 214.2(l)(l4)(ii) also provides that a vi sa pet,ition,.which involvedthe opening ofa
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 Un ited 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 benefic iary 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 accompan ied by evidence
of wages paid to employees when the beneficia ry will be employed in a
managerial or executive capacity ; and
(E) Evidence of-the financial status of the United States operation.
The primary issue i n the present matter is whetherthe 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. § 1I01 (a)(44)(A) , defines the term "managerial capacity" as an
assignmentwith in an organization in which the employee pr imarily: '
, , '
(i) manages the organization , or a department , subdivi sion" 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
WAC 04 08753410
Page 4
(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 iOl(a)(44)(B), defines the term "executive capacity" as a~
assignment within an'organization in which the employee primarily:
(i)
(ii)
(iii)
(iv)
directs the management of the organization or a major component or function of the
organization;
establishes thegoalsand policies of the organization, component, or function;
exercises wide latitude in discretionary decision-making ; and
receives only general supervision or direction from higher level executives , the board
of diredtors, or stockholders of the organization . .: "
The petitioner does not clarify it}, the initial petition whether the beneficiary will perform primarily managerial, ,
duties under section 101(a)(44)(A) of the Act , or primarily executive duties under section 101(a)(44)(B) of
the Act, and counsel on appeal appears to limit the beneficiary to the managerial classification. A petitioner
may not claim that a beneficiary will be employed 'as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that the petitioner is
asserting that the beneficiary will be employed in either a managerial or an executive capacity and will
consider both classifications.
. ,
The petitioner described the beneficiary's proposed job duties in an attachment to the Form 1-129 as follows:
"Manage overall operations of the company; strategize with Associate Manager as to goal, direction and
policies of the company's growth; hire and fire managerial personnel, in conjunction with the Associate
Manage[r]; report to the Board of Directors of the parent company:" It should be noted that the petitioner
attributed this job description to the "manager," and it is unclear ,whether this brier description is truly
applicable -to the beneficiary who is described in both the Form 1-129 and organizational chart as the
"associate manager.' ,'
The petitioner also submitted an organizational chart in which the beneficiary is described as the "associate
manager" and is portrayed as reporting to a manager. The beneficiary is also shown to directly supervise a
"sales manager" and an "office manager," who, in tum, is shown to supervise areceptionist/bookkeeper .
Oil March 22; 2004, the .director requested additional evidence. The director requested, inter alia, more ,
detailed descriptions of the job duties of the beneficiary and his subordinate employees .
In respon~e, counsel to the 'petitioner submitted a lett~r dated April 28, ,2004 in which he describes ,the
beneficiary's proposed duties as follows :
WAC 04 '087 534 10
Page-S
• Managing overall operations, negotiating and signing contracts on behalf of the
company (40%)
• Directing administration and sales (40%)
• Hiring and firing managerial personneI(I5 %)
• . Prepare performance and development reports to Manager (5%)
The petitioner also described the beneficiary's two direct subordinates . .The petitioner described the "sales
manager" as "manag[ing] the sale s operations of the U.S . company and ha[ving] the authority to hire, train
and fire sales personnel." The petitioner described the "office manager" as having a community college
degree and as "manag[ing] the administration of the U.S. company and ha[ving] the authority to hire, train,
and fire office workers."
On August 25, 2004, the director 'denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal , the petitioner asserts that the beneficiary's duties are primarily those of a manager.
Upon review, the petitioner's assertions are not persuasive .
. Title 8 c.P.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position . There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period . If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrati ve tasks, the petitioner is ineligible by regulation for an extension . . In the instant
matter, the United States operation ~as not reached the point that it can employ the benefic iary in a
predominantly managerial or ,executive po sition.
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.P.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 d~ties are
either in an executive or managerial capacity. Id. As e xplained above, a petitioner cannot c~aim that some of
the duties of the position entail executive responsibilities , while other duties are managerial. A petitioner may
not claim that a beneficiary ,will be employed as a hybrid "executive/manager' tand rely on partial sections of
the two statutory definitions .
The 'petitioner 's description of the beneficiary's job duties has failedto establis~ that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary 's duties that fails to demonstrate what the beneficiary 'will do on a day-to-day. .
basis. For example , the petitioner states that the beneficiary will devote 80% of his ·time to "[m]anaging
overall operations, negotiating and signing contracts on behalf of the company" and "[d]irecting
administration and sales." However , the petitioner does not explain what , exactly, the beneficiary will do to
"manage'" or "direct" . the company , administration , or sales. The fact that the petitioner has given the
beneficiary a managerial title and has prepared a vague job description which includes inflated duties does not
establish that the beneficiary will actually perform managerial duties. Broad, conclusory statements such as
~. '"
WAC 04 08753410
Page 6
, "those found in the' instant job description 'are not probative of' the beneficiary performing managerial or
executive duties : Specifics are clearly an important indication of whether a beneficiary's duties are primarily
executive or managerial in nature ; otherwise meeting the definitions would simply be a matter of reiterating
the regulations . Fedin Bros'-Co., Ltd. v. Sa va, 724 F. Supp. 1103 (E.D '.N.Y. '1989), aff'd, 905 F.2d 41 (2d.
Cir. 1990). Go ing on record without supporting documentary evidence is not sufficient for purpo ses of
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec . 190
(Reg. Comm. 1972).
Likewise, it appears that many of the duties listed by the petitioner are likely non-qual ifying administrative or
operational tasks which do not rise to the level of being managerial or executive in nature.. For example, the
petitioner states that the beneficiary will prepare "performance and development reports" and direct sales.
However , preparing reports and engaging in sales activities constitute administrati ve or operational tasks
when the tasks inherent to these duties are performed by the beneficiary . When coupled with the vagueness
of the other ascribed duties, e.g., managing operations and ,directing administration , it cannot be confirmed
that he ,will be "primarily" employed as a manager. An employee who "primarily " performs the tasks
, necessary to produce a product or to provide services is not . considered to be "primaril y" employed in a
managerial or executive capacity. See section s 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumeratedmanagerial or executive duties); see also Matter.of Church Scientology
International, 19 I&N Dec. 593 , 604 (Comm. 1988). It is more likely than notthat both the beneficiary and
his staff will all primarily perform non-qualifying tasks. See generally Family, Inc. v. Us. Citizenship and
Immigration Servic es,4 69 F.3d 1313 (9 th Cir. 2006) . '
The petitioner has also failed to establish that the beneficiary will superv ise and control the workof other
supervisory , managerial , or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart and job descriptions for the subordinate staff members, the
beneficiary appears to directly supervise a ,sales manager and ap office manager, and, indirectly, a
receptionist/bookkeeper. However, the vague job description provided for the office manager fails to
establish that she will primarily engage in performing supervisory or managerial duties. An employee will, ,
not be considered to be a supervisor simply because of a job title or because he or she supervises daily work
activities and assignments .' Rather. ithe employee must be shown to possess some significant degree of control
or authority over the .employment of subordinates. See generally Browne v. Signal Mountain Nurs ery, L.P.,
286F.Supp.2d 904, 907 (E.D . Tenn. 2003) (citedin Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16
(E.D. Tex. Jan. 11 , 2007)). To the ' contrary , it appears that the office manager will perform the tasks
necessary to produce a product or to pro vide a s ervice , e.g., clerical tasks. Furthermore , the fact that the
organizational chart indicates that the petitioner intends on hiring a sales staff in the future .is not relevant.
The petitioner must establish 'eligibility at the t ime of filing the nonimmigrant visa petition. A visa 'petition
may not be approved at afuture date after the petitioner or beneficiary becomes eligible under a new set of
facts. Matter ofMicheli~ TireCorp., 17 I&N Dec . 248 (Reg. Comm. 1978) . .
In view of the above , it appears 'that the beneficiary will be primarily a first-line supervisor of non­
professional employees, the provider of actual services , Of a combination 'of both. A managerial employee ,
must have authority over day-to-day operations beyond the level normally vested in a first-l~ne supervisor,
unless the supervised employees are professionals. Section 101(a)(44)(~)(iv) of the Act ; see also Matter of
Church Scientology International, 19 I&N Dec . at 604. Moreover, the petitioner has not established that the
: WAC 04 08753410
. Page 7
beneficiary will manage professional employees ? Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity. ' .
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focu ses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization , and that person 's
authority to direct the organization . Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or becau se they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
2In evaluating whether the beneficiary will manage professional employees , the AAO must evaluate whether .
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. .
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32 ), states that "[t]he term profession shall include but not
be limited to architects , engineers, lawyers, physicians, surgeons, .and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The .term "profession" contemplates knowledge or learning, not
merely skill , of an advanced type in a given field gained b y a prolonged course of specialized instruction and
study of at least baccalaureate level , which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm . 1988); Matter of Ling , 13 I&N Dec. 35 (R.C. 1968) ;
Matter ofShin , 11 I&N Dec. 686 (D.D. 1966).
3While the petitioner has not argued that the beneficiary will manage an essential function ofthe organization,
the rec?rd nevertheless would not support this position even if taken. The term "function manager" appl ies
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is, , .
primarily responsible for managing an "essential function" within the organization. .See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner mustfumish a written .
job offer that clearly describes the duties to be performed in managing the essential function , i.e., identify the
function with specificity, articulate the essential nature of the function, and establ ish the proportion of the ·
beneficiary's daily duties attr ibuted to manag ing the essential function. See 8,C.F .R. § '214.2(l)(3)(ii). In
addition, the petitioner 's description .of the beneficiary' s daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence , that the beneficiary will manage an essential function . The petitioner 's v ague job
description fails to document what proportion of the beneficiary's duties will be managerial , ifany, and what
proportion willbe non-managerial, Also, as explained above , the record e stablishes that the beneficiary will
. primarily be a first-line supervisor of non-professional employees and/or will be engaged in performing non- '
qualifying operational or administrative tasks . Absent a clear and credible breakdown ' of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager.
See IKEA US, Inc. v. u.s. D<;pt. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
WAC 04 087 53410
Page 8
and receive only "general supervision or direction from higher level executives , the board 'of directors. ior
stockhold~rs of the organization." Id. For the same reasons indicated above ; the petitionerhas failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary ,will do ~n a day-to-day basis.
Moreover, as explained above , it appears that the beneficiary will be primarily employed as a first-line
supervisor and will perform the tasks necessary to produce a .product Of to provide a service. Therefore , the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
, .
It is appropriate 'for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business .
in a regular and continuous manner. See, e.g ., Systroni csCorp. v. INS, 153.F. Supp. 2d 7,15 (D.D.C. 2001) .
Accordingly , in this matter , the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties , and the petition may not be approved for that reason.
Beyond the decision of the director ; the petitioner has not"established that it still has a qualifying relationship
with the foreign entity , because the petitioner has failed to. establish that it or the foreign entity is "doing
business" as defined by the regulations.
, , '
The regulation at 8 C .F.R'. § 214.2(l)(l 4)(ii)(A) states that a petition to extend a "new office" petition filed on
Form I-i29 shall be accompanied by: .
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(l)(ii)(G) of this section[.]
Title 8 C.F.R. § 2l4.2(i) (l)(ii)(G) defines a "qualifying organization" as a firm , corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the definitions of ~ parent, branch,
affiliate or subsidiary specified in paragraph (l)(I)(ii) of this section" and "'is or will be doing b~siness ." A
"subsidiary" is defined in pertinentpartas a corporation "of which a parent owns, directly or indirectly, more than
half of the entity and controls the.entity." "Doing business" is defined in pertinent part as "the regular,.systematic,
and continuous provision of goods and/or services."
In this matter, the petitioner has fa iled to establish that it is currently "do ing business." Whiie the petitioner ,
~ubmitted tax returns and business documents indicating that the petitioner has purchased imported goods , the
record is devoid of evidence of any sales by the petitioner. Although the tax returns and the income statement
claim that the petitioner has sold goods, these documents are not supported by any corroborating evidence , e.g.,
invoices, customer data, or bills of sale. Once again, going on record without supporting documentary evidence
is not sufficient for purposes of meeting the burden of proof in these proceedings . Matter of Treasure Craft of '
California , 14 I&N Dec. 190 . Failure to submit requested evidence that precludesa material line of inquiry
shall be grounds for denying .the petition. 8 C .F.R. § 103.2(b)(14). Furthermore; the income statement
submitted by the petitioner is of questionable evidentiary value. The accountant who prepared the statement
indicated in a letter dated January 27, 2004 that she cannot offer any assurances as to the accuracy of the
" income statement and that the statement is based entirely upon the petitioner's representations. Finally, the
WAC 04087534"10
.Page 9
lease submitted as e vidence of the petitioner's purported business premises lists the beneficiary as the lessee ,
not the petitioner ; and thus calls into question whether the petitioner has ever conducted business in the
United States. Accordingly , the petitioner has failed to e stablish that it is engaged in the regular , systematic ,
, and continuous provision of goods and/or services ." '
.Moreover, the petitioner' has failed to establish that the foreign entity has been "doing business." The record is
entirely devoid of any evidence of business activity by the foreign entity. Although the petitioner has submitted
an untranslated advertising brochure, payroll records, photographs of a building presumably in China, a telephone
listing, a business license; and unaudited financial data , this evidence does not establish the regular, systematic ,
and continuous provision of goods and/or services . The petitioner did not submit any invoices, customer data, or
.bills of sale other than what concerns the petitioner and its claimed purchase of goods from abroad.
Accordingly, as the petitioner has failed to establish that it or the foreign entity is "doing business," the petitioner
has failed to ' establish that it and the foreign entity are qualifying organizations , and the petition may not be
approved for this additional reason .
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed abroad
in a primarily e xecutive or managerial capacity. In support of its petition , the pet itioner has provided a vague
and nonspecific description of the beneficiary 's duties that fails to demonstrate what the beneficiary did on a
day-to-day basis. For example, counsel asserts in a letter dated April 28 , 2004 that the beneficiary devoted
40% of his time to "[n]egotiating and signing contracts" and 30 % of his time to "[ d]irecting administration i
and sales." Ho wever, the petitioner failed to specifically explain 'what , exactly , the beneficiary did in
performing these duties. Furthermore , the preparation of reports and negotiat ing contracts are administrative
or operational tasks when the tasks inherent to these duties are performed by the beneficiary. Overall , the
vague job description for the beneficiary fails to establish that the beneficiary was engaged in primarily
performing executive or managerial duties abroad , and the petition may not be approved for this additional
reason.
Despite any number of previously approved petitions, CIS does not have any authority to confer an
immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section
291 of the Act, 8 U .S.C. § 1361. The prior appro vals do not preclude CIS from denying an extension of the
original visa based on a reassessment of the petitioner's qualifications . Texas A&M Univ. v. Upchurch , 99
Fed . -Appx . 556, 2004,WL 1240482 (5th Cir. 2004) . Therefore , even though the petitioner was .successful in
the past in petitioning for the beneficiary, the director properly denied the petition 'in this case.
Furthermore, if the previous nonimmigrant petition was approved based on the same assertions that .are
contained in the current, record; the approval would constitute material and gross error on the part of the
director. The ··AAO. is not required to approve an application or petition where eligibility has not been
demonstrated merely because of prior approvals that may have been erroneous . See, e.g., Matter of Church
Scientolo gy International , 19 I&N Dec . 593 , 597 (Comm . 1988). It would be absurd to suggest that CIS 'or
4It is noted that, as the instant petition seeks to extend a "new office" petition , the petitioner has also failed to
establish that it has been doing business for the previous year for the same reason . 8 C.F.R. § 214.2(1)(14)(ii) .
For this additional reason , the petition may not be approved .
WAC 0408753410
Page 10
any agency must treat acknowledged errors as binding precedent. Sussex Eng'g. Ltd. v, Montgomery, 825
F.2d i084 , 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
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 alternat ive grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion w ith respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043 .
In visa petition proceedings , the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
Finally, a review of the prior L-1 "new office" nonimmigrant petition approved on behalf of the beneficiary
(WAC 02 229 53612) is warranted to determine if it wasapproved in error. "i\s indicated above; the petitioner
has not 'established that the beneficiary was employed '~broad 'in a primarily managerial or executive capacity .
Furthermore, as the record indicates that the petitioner wasnot the lessee of commercial space , it is likely that
the petitioner would not have been able to establ ish that it had secured sufficient phy sical premises to house
the "new office." See SC.F.R. § 2l4.2(l)(3) (v)(A). Therefore, the director shall review the prior L-l
nonimmigrant petition approved ' on behalf of the beneficiary for possible revocation in accordance with 8
C.F.R. § ~14.2(l)(9) .
ORDER:
FURTHER ORDERED:
The appeal is dismissed .
, The director shall review the prior L-l nonimmigrant petition approved on
behalf of the beneficiary for possible revocation pursuant to 8 C.F.R. §
214.2(1)(9).