dismissed L-1A Case: Lubricant Distribution

identifyingdaUideletedW
preventclearlyunw~ted
invasionofpersonalpnv~y
U.S. Department of Homeland Security
20 Mass Ave., N.W., Room 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: SRC 0412651514 Office: TEXAS SERVICE CENTER Date: .PfAY 0 1 2007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
SELF~REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
theoffice that originally decided your case. Any further inquiry must be made to that office.
R~nn~~
Administrative Appeals Office
www.uscis.gov
SRC 0412651514
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A
nonimmigrant intracompany transferee pursuant to section lOl(a)(15)(L) of the Immigration and Nationality
Act (the Act),8 U.S.C. § 1l0l(a)(15)(L). The petitioner is a corporation organized in the State of Florida that
claims to be engaged in the distribution and wholesale of lubricants for maritime engines, motor vehicles and
aircraft. The petitioner further claims that it is the subsidiary of CARIB-LUB, c.A., located in Caraboro,
Venezuela. 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.
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, the petitioner asserts that the beneficiary would be
employed inthe United States in an executive as well as managerial capacity. In support ofthis assertion, the
petitioner submits additional evidence.
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. III addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
,specialized knowledge capacity..
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed onForm 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
abrop.d 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 him/her to perform the intended
SRC 0412651514
Page 3
, services in the United States; howeyer, 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(1)(14)(ii) also provides that a visa petition, which involved the opening ~f 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 (1)(1)(ii)(G) ofthis section; ,
(B) Evidence that, the United States entity has been doing pusiness as defined Ill,
paragraph (1)(1)(ii)(H) of this section/for the previous year;
(C) •. A statement of the duties perforri:led by the benefi~iary, for the previous year and the
duties tIle'beneficiary will perf0tn:J.l,mderthe extended petition; ; ,
(D) A statement describing the staffing of the new operation, including thenumber 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
~apacity; and' "
, ,
(E) Evidence of the financial status of the United States operation.
At issue in the present matter is whether the beneficiary will be employed by the 'United States entity in a
primarily manageri~l or executive capacity. . ,
~ , . .
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1l01(a)(44)(A), defines the term"managerial capacity", as an
assignmentwithin an organization in which the employee primarily: '
(j) manages the organization, or a department, s~bdiviSion, function, or' 'coqiponent of
the organization;
(ii) , supervises and controls the w<;>rk of other ,supervi~ory; professional, or managerial
employe~s, or manages an essential functi~n within the or~~mization, or(l.depart~ent'
or subdivision of the organization;
" (iii) if another employee or other employees are 'directly supervised, has the authority tp
'hire and fire or. recommend those as well as other personnel' llctions (~uch 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
functionmanag~d; and .' ' ,
(iv) exercises discretion over the day today operations of the activity or function for
which the einployee has authority. , A first line supervisor is not considered to be
SRC 0412651514
Pag~4
acting ina managerial capacity· merely by virtue of the, sup~rvisor's supefVlsory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employ~e primarily: .. .
.(i) directs the management ofthe organization or a major coniponent or functi<?nof the
organization; .
(ii) establishes the goals and policies ofthe orga~ization, component, or function;
(iii)., exercises wide'Iatifude 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 an undated letter accompanying the initial petition that was filed on April 1, 2004, the petitioner described
the beneficiary's job duties as follows:
1. Plan[s], develop[s] and establish[s] policies and objectives of the business organization
and operation, as well as organizational policies to coordinate fUnctionsand operations of
.the company (Dedicating approximately 20% of her time to this duty). "
, . ,
2. Manages, control[s] and coordinates our projects. Participation with other members of
the organization, [m]anages and organizes,"the work of the eIT,lployees'under her
supervision (Dedicating approximately 10% of her time'to this duty).. . . ,',.
3. Develop[ s] and' lpairttain[s] funding sources' for the organization. (I)edicating
approximately 15% of her time to this duty).
4. Serve[s] as the organization's spok~sperson t'obusiness, government and .community.
., members and groups throughout the State of Florid~L (Dedicating 15% of her titrieto this
duty).
5. Supervise[s] and manage[s] the organization's budget, and financial resources.
(Dedicating lO%.ofher time to this duty);
6. Oversees' all staff. Hires employees, for the correct functioning of the enterprise, she
name[s] and fixes salaries and bonuses. ([D]edicating 10% of her time to this duty).
'. .
7. Work[s] in collaboration with th~ Board' of Directors. All the OrganIzation staff will
... report directly or indirectly to the President. The President will report to the .Board of
Directors. (Dedicating 10% of her·time to. this duty).
. :.
SRC 0412651514
Page 5
8. Identifies potential trading deals. Coordinates sales distribution by establishing sales
territories', quotas, and goals and advises dealers, distributors, and clients concerning
sales and advertisingtechniq~es. ([Dedicating] 10% of her time to this duty).
The petltloner stated in the same letter that the company has three employees and two, independent
contractors. The petitioner submitted an organizational chart for the U.s. company showing that the staff •
under the beneficiary's supervision is comprised of an administration manager and a general manager, who in
turn supervises a salesperson and a secretary. A copy of a Florida State Employer's Quarterly Report for the
quarter ending December 31, 2003 inc:iicatesthat the company's three staff members with employee status are
the ben~ficiary, the general manager and the salesperson. The petitioner did not provide any information
relating to the two i1?-dependent,contractors.
On May 17, 2004, the director reque~ted additional' evidence. Specifically, the director requested the
following: an explanation of why the p'etitioner's tax return shows orily three employees on staff when the
petition indicated there were five; an organizational chart listing all positions; a list of all employees and 'their
positions, qualifications and duties; a list of the beneficiary's duties and percentage of time spent on each; and
photos of the business premises and office space for the beneficiary.
In response, the petitioner explained that when th~ petition was initially submitted, the comp~my had three
employees (the beneficiary; the general manager and the salesperson) and two indepe~dentcontractor~ (the
administration manager and the secretary), but by the time of the reply, the company had four employees (the. . ,
previous three plus another'individual identified as a secretary) anqonly one independent contractor (the
aqministrative manager). The petitioner submitted another organizational chart, which differs from the earlier
one in that the secretary is now placed under the direct supervision of the beneficiary rather than the general
manager.' The petitioner also resubmitted the job descriptions of its employees with more details regarding
their education and qualificatio11s. In addition, the petition~r provided (1) its Employer'sQuarterly Reports
for the first anc:i second quarters of 2004, each showing that there are four employees on its payroll, namely
the beneficiary, the general manager, the secretary and the salesperson; (2) copies of two independent
. contractor agreements, one documenting the company's arrangement with the administration manager and the
other with the company's fonner se~retary (whose servi~~s apparently ceased as of the end of 2003); imd (3)
photograpns of the company's office premises. ' "
.On September 28, 2004, .thedirector denied the petition. The director determined, that the petitioner did not
establish that-the' beneficiary would be employed in the United State~, in a primarily managerial or executive
capacity. Specifically, the director observed it would appear that the beneficiary is engaged primarily iIi the
day-to-day operations of the b4siness w:ithoutmanaging any professional or managerial subordinates. With,'
,respect to ~he confusion regarding the number 'of employees on the company's staff, the.,director noted that
independent contractors are not considered employees for purpose,s of this petition, and that the relevant
employees '~re those actually on staff at the t~me th~ petition was filed and not after.
On appeal, the petltionef'reiter~tes the description of the benefitiary's duties and characterizes them as both
.' managerial and executive in nature. The petitioner further asserts that the beneficiary:s subordinate staff
SRC 04,126 51514
Page 6
performs the day-to-dayoperations, of ~he company and the beneficiary is not actually involved. The
petitioner claims that the general manager is the person whose duties encompass the day~to-day operations of
the' company, thus allowing the betieficiary to focus on h~r executive and managerial role. The petitioner
further'contends that the beneficiary does supervise professional and, martagerial employees, since the
administration manager is a. certified public accountant and the general manager has a bachelor's degree in
business administration. The petitioner submits additional documentation, including copies of checks and
, corpor~te agreements signed by the beneficiary on behalf of the company and ,an affidavit of'~orporation
stating the beneficiary's official capacity to serve as president, as evidence of the beneficiary's managerial
capacity:
Upon review, the AAO finds the evidence of record insufficient to support the conclusion that the beneficiary
would be employed in the U.S. in a primarily executive or managerial capacity.
when examining' the executive or. managerial capacity of the' benefici,!ry, the AAO will look first to the
petitioner's description of the job quties. See 8 C.F.R. § 2l4.2(l)(3)(ii); The petitioner's descriptIon ofthejob
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 p~titioner must specifically state whether the
beneficiary. i~ primarily employed in a managerial or executive capacity. Apetitioner c'annotclaim that some
of the duties of the position entail executive responsibilities, while other duties are managerial. A beneficiary
may not claim to be employed as a hybrid "executive/manager" and: rely on, partial sections' of the two
statutory definitions. ' If the petitioner chooses to represent the beneficiary 'as both an ex..e6utive and a
manager, it must establish that, the beneficiary meets' each of the four criteria set forth in the statutory, ,' ..
definition for executive and the statutory definition for manager. '
On review, the petitioner has provided a vague and nonspecific description of thebeneficiary'~ duties that
fails to demonstrate what the beneficiary will do on aday-to~day basis. For example, the petitioner states that
the.beneficiary's duties include "[p]lan, develop and establish policies' and objectives of the business
; organization and operation/' i'[m]anages, control[s] and coordinates [th~ company's] projects," "[d]evelop and
mai~tain funding sources for the organization," and "[w]ork in collaboration with the Boa~d of Direc(ors."
The petitioner did not, however, define the policies and objectives that the beneficiary is said to develop, or
clarify what will be involved in developing and maintain funding sources, or indicate what working 'with the
Board of Directors will entail. Going on record without supporting documentary ~vidence 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)).
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the
regulations require ~ detailed .description of the beneficiary's daily job duties. The petitioner has failed to
provide sufficient details to answer a critical question in this case: What will the beneficiary primarily do on a
daily basis? The actual duties themselves will reveal the true nature of the employment. FedinBros. Co., Ltd.
v. Sava, 724 F. Supp, 1103, 1108 (E.D.N.Y. 1989), affd;905F.2d 41 (2d. Cir. 1990).
Further, it is noted 'th~t on appeal, the petitioner asSerts that the beneficiary performs duties that are both
managerial and executive in nature. However, indes'cribing the beneficiary's "executive" capacity on appeal,
'rather than providing a specific description ofthebeneficiary'sdutie,s, thepetitioner again merely repeated the
SRC 0412651514
'Page 7
, statutory definition of executive 'capacity,' stating that the beneficiary "directed the organization, establIshed
goals and policies, exercised discretionary decision-making authority and received supervision only by the
,Board of Directors.'" See section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). Conclusory assertions.. . .... .
regarding the beneficiary's employment capacity are not sufficient to establish eligibility in this matter.
,Merely repeating the language' 'of the statute or regulations does not satisfy the petitioner's burden of proof.
FedinBros. Co., Ltd. v,Sava, 724 F. Supp. at 1108. ,.
,With respect to the u.s. entity's personnel, the'AAO'notes that there are certain unexplained inconsistencies
between di'sclosures in the initial petition and iriformationgiven in response to the director's request for
furth~r' evidence. in the initial petition, fIled on April 1, 2004, the petitioner indicates that the U.S. entity has '
three employees and two' independent contractors~ Later, in response to the director's request for further
evidence, the petitioner states that, while that was the,case at the time the petition was filed, the company now
has four W~2 enip10yees and one independent contractor. However, based on documentation submitted with
the response, including the Employer's Quarterly Reports for the first two quarters of 2004 and the
independent contractor ,agreements, it appears the,company has had four W-2 employees and one'independent
contractor since the beginning of 2004, and certainly at the time the petition was filed. It is unclear why the
petitioner did not disclose this inform~tion initiall)< It is incumbent upon the petitiotier to resolve any
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such,
inconsistencies will not siIfficeunless the petition~;~ubmitscompetent 'objective evidence pointing to where
the truth lies. Matter ofHo,-l9 I&N Dec. 582, 591-92 (BIA 1988). Moreover, doubt cast on any aspect of the
petitioner's proof may, of course, 'lead' to a reevaluation of the reliability and sufficiency of the remaining
,evidence offered in support of the visa petition. Id. ' . ' ,
, In addition, although the beneficiary is not required to supervise personnel, if it is claim'ed that her duties
involve supervising employees, the petiti~ner must establish that the s~bordinate e11?-p10yeesare supervisory,'
professional, or managerial. See § 101(a)(44)(A)(ii)of the Act. As the director concluded, the petitioner has
not made that showing here.
The petitioner cO,ntends on appe~l that, contrary to the di~ector's finding, the b~neficiary does' supervise
professionalemployees since two 'of her subordinates are .m~magers, one of whom has a bachelor's degree in
business admInistration and the other is a certified public accountant. The AAO notes that, although the
petItioner did state' these eQ1ployees'educational background in response to the director's requ~st for further
evidence, the petitioner did not proyide any documentary proof to support this claim. Again, going on record
without supporting documentary evidence is not sufficient for purposes of meeting the bu~den of proof in
these proceedings. Matter of Soffici, 22 I&N Dec. ,at 165. Moreover, ~hether or not the subordInate
employees may be considered professionals depend~ on the level of education required by the positions,
rather than the degrees held by the subordinate employees. The possession of a bachelor's degree by a
subordinate employee does not automatically lead to the conClusion that an employee is employed in a
profeSSIonalcapacitY. see, e,g:, Matter ofSea, 19 I&N Dec. 817 (Comm. 1988); Matter ofLing, 13 I&N Dec.
35 (R:C. 1968); Matter o/ShilJ, 11 I&N Dec. 686 '(D~D. 1966). In thein~tant case, the petitioner has not
~stablished th~t ~n advanced degree is actually 'necessary to' perform the work of the two subordinate
employees in question, '. The evidence IS therefore insufficient to show that the beneficiary supervises"
professional employees. "
· SRC 0412651514
Page 8
The record is also irisufficient to show that the beneficiary supervises managerial or supervisory employees.
The record indicates that two of the beneficiary's subordinate employees have managerial ,titles, nal1fely the
administration manager and the general manager.· However, it does not appear that the administration
manager supervises or manages any other employees, nor is there sufficient evidence to show that this
, employee is "in charge of all financial matters of the company" as claimed in the job description. The
, independent contractoiagreemeJ.1t between the company and the administration manager indicates only that
she provides general accounting and bookkeeping services for the company, and there is no evidence, such as
, invoices or proof of payment, to' show the nature and extent of work she"actually performs for the company. .
Moreover, the beneficiary's job description states that'she is the one who "supervise[s] 'and manage[s] the'
organization's budget and financial resources," not the admin~stration manager.', ' . .
With respect to the general manager, although the revised organizational chart submitted in response to the
director's request for further evidence indicates thathe, supervIses the salesperson, it'is not clear from the job
descriptions that this is 'actually the ,case. The job description for the salesperson states that he "reports
directly to th~' general manager;" however, the job description for, the general manager does no~ indi9ate that .
'he has any supervisory responsibility over any' aspect of the salesperson's described duties' such as
telemarketing, development of new' accounts, or sales distribution. In fact, the AAO notes that in 'the same,
job description forthe staff, the petitioner stated that it is the beneficiary herself, and not the general manager,
who "coordinates sales distribution by establishing sales'territories, quotas, and goals and advises' dealers,
distributors, and clients concerning' sales and advertising te'chniques."Thus it would appear more likely that,
,the salesperson's "York falls under'the supervision ohhebeneficiary herself rather than the general manager.
· Furthermore, since the beneficiary clearly ,supervises thfee out of the four subordinate staff, and the
supervision of the fourth is in doubt, the record does not support the petitioner's claim on appeal that the
general manager is th~ one responsible· for the day-to~day ,. ope~ations of ,the company, thus all()wing the
beneficiary to focus on her qualifying duties.
As such, the record is not sufficient to show that the.'beneficiary supervises ariy"supervisory or managerial
employees, other than in title only. Thus, the petiti6ner has not shown that the beneficiary's subordinate
employees are supe~isory, professioriaI;"ormanagerial, as required by section 101(a)(44)(A)(ii)of the Act..... ., . ., ,
Finally, the AAO notes the petitioner has submitted additional evidence on'appeal c..: specificallY,checks and
corporate agreements signed by the beneficiary and an affidavit of corporation - as proof of th~ beneficiary's ,
· managerial capacity; However, while these documents may.demonstrate that the beneficiary is authorized to
execute corporate docu~ents on behalf of the company and may attest to the beneficiary's knowledge of the
company, they do not advance the petitioner's burden of establishing that the.beneficiary functions primarily
in an executive or managerial capacio/ as defined in the Act.
In light of the foregoing, the AAO cannot conclude th~t the petitioner has established that the beneficiary will
be employed in a primarily executive or managerial capacity, as required by 8 C.F.R. § 214.2(1)(3).,
Beyond the director,'sdecision, th~ petitioner has' notpro~ided sufficient: evidence to establish that a
qmilifying relationship continues'to exist between the U.S. and foreign entities. The regulations and case ·law
SRC 0412651514
Page 9
"
·'1 • '". •
confihn that ownership and control are the factors that must be examined ill determining whether a qualifying
relationship exists between the United States and foreign entities for purposes of this visa classification.,
Matter of Church Scientology Inter.iwtional, 19I&N Dec. 593, 597 (Comm. 1988); see' also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matte~ ofHughes, 18 I&N Dec. 289 (Comm.
1982). In the context of this visa petition, ownership refers to the director indirect legal right of poss~ssion of
the assets of an entity with full power and authority,to control; control)neans the direct or indirect legal right I
and authority to direct the establishment, management,and operations of an entity. , Maper of Chilrch
Scientology International; 19 I&N Dec. at 59?' '
.;
On the L Supplement to Form 1-129, the petItioner indicated that the U.S. entity is wholly owned by the
foreign entity. In support ofthis claim, the petitioner submits a copy of share certificate number 1 of the U.S.
entity, which indicates that the foreign entity owns 100'shares of the U.S.entity. The petitioner submitted no
other 'evidence of ownership' interest in the 'U.S. entity. As general evide,nce Of a petitioner's claimed
qualifying relationship, stock certificates alone are not sufficient evidence to determine whether astockholder
'maintains ownership and control of a corporate entity. The corporate stock certificate ledger, stock certificate
registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also 'be examined to
detehnine the total number of shares issued" the exact number issued to the shareholder, and the subsequent
percentage ownership and its effect on corporate control. Additionally, c:L petitioning company ~ust disclose,
all agreements relating to the voting of shares, the distribution of profit, the man~geinent and dire,ctionof the'
subsidiary, and any other factor affecting actual control of the entity. See Matter ofSiemens Medical Systems,
Inc, 19 I&N Dec: 362. Without full disclosure of all relevant documents, the Citizenship ,and Immigration '
Services (CIS) is unable to determine the elements of ownership and control,and therefore cannot conclude
that a qualifying relationship, between' the U.S. and foreign e~tities continues, to exist as claimed:. FQr this
additional reason, the petition will be denied. l' , .
In' additiot:J.,the record contains insufficient evidence to establish that the overseqs" company employed ,the
beneficiary in a primarily managerial or executive capacity for the requisite one-year period prior to the filing
ofthe petition. In' its 'letter accompanying the initial petition, the petitioner stated that the beneficiary lias'
, ' ,
1 The AAO also note's,that the copy of the stock certificate submitted has on its face a num~er~f d<::fe'ctsthat
renders its authenticity and' validity questionable. First, the certificate is undated. Second, the number of ,
shares is not filled out at thet~p of the certificate a.nd is partially blanked out with liquid paper in the body of
the copy ofthe certificate. Third, the certificate hears one signature 'in the blank reserved for the secretary of
the'company. However, it is questionable "whether the signature is actually that of Johannes Lopez, listed in
the Articles of Incorporation as the secretary on the company's board ofdirectors, since the signature actually
matches that of<tn accounting service that prepared the company's 2003 federal'income tax return. Doubt cast
on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and. sufficiency
of the remaining evidence offered in support of the visa petition. Matter ofRo, 19 I&N Dec. at 591.
Moreove~, if CIS fails to b~lieve that a: fact stated in the petition is true, CIS mll,y reject,that fact: Section
204(b) of the Act, 8 U.S.C. § l,154(b); see,also Anetekhaiy. I.N5:, 876 F,2d 1218, 1220 (5th Cir.1989);Lu­
Ann Bakery Shop, Inc. v. Nelson" 705F. Supp. 7, 10 (D,D.C.1988); Systronics Corp, v. INS, 153 F. Supp.2d
7, 15 (D:D.C. 2001). ' ,
SRC 0412651514'
Page 10
been employed by the foreign entity since 1997 as its operations manager; However, the petitioner has failed
to provide any evidence' to substantiate the claimed period of overseas employment, or even that the
beneficiary was employed by'the foreign entity for at least the required one~year period. Moreover, there is
, insufficient proof that the beneficiary was employed by the foreign entity in a primarily managerial or
executive cap~city. The petitioner described the benefici~ry's job duties abroad as: . . .
Managing the operations of th~ company in' its entirety; reporting any anomalies directly to, .
.the President; [developing] marketing plans' for .efficient use of materials, machines· and
equipment; [d]esign budget and procedures to capture new projects in the operations area.
Ensure proper departm~nt functioning. Take persOtm'e1actions like' firing, liiring,fix bonuses .....
and salaries for the personnel under her supervision.
· The petitioner also' claimed that the beneficiary supervised "the [two] top man~geis oLthecompany."
· However,without any information regarding the organizational spucture of the foreign enti~, and without
· further details regarding the beneficiary's job duties·beyond the broad anel vague description stated above, the'
AAO is unable to.determine whether the beneficiary was in fact employed by,the foreign entity ina primarily
managerial.or executive capacity as required under 8 C.F.R: § 2l4.2(l)(3)(iv).Forthis~dditional reason, the
petition will be .denied.
An application or petition that fails t~ 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 Ent~rprises, Inc. v. United States, 229 F. Supp: 2d 10i5, 1043 (E.D. CaL200l), afJ'd, 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),
The petition will b'e denied for the' above stated reasons, with each considereda~' an independent and
" alternative basis for denial. When the AAO denies a petition onmuhiple alternative grounds, a plaintiff can
succeed on a challenge only if she shows that the AAO abused it discretion with respect to all of the AAO's
enumerated grounds. $e~ SpencerEnterprises, Inc. v. United States, 229 F. Supp.2d at 1043.
. .
In visa petition proceedings, the burden of proving eligibil~tyfor the benefit so~ght remains entirelywith the
petitioner; Section 291 of the Act, 8; U.S.c. §.1361. Here, that burden has' not been met. Accordingly, the
director's decision will be affirmed and the petition will be denied.
ORDER: The appeal is' dismissed.