dismissed L-1A Case: Marble Art

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PUBLIC COpy
identifyingdata deletedto
preventclearly unwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: SRC 06 038 53260 Office: TEXAS SERVICE CENTER Date: SEP 0 52001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 110l(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~f
Administrative Appeals Office
www.uscis.gov
SRC 06 038 53260
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 visa petition seeking to extend the employment of its executive
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. § IlOl(aX15)(L). The petitioner is a corporation
organized under the laws of the State of Florida and is allegedly engaged in the import and export of marble .
art and the design of artwork. 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 will 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 director
erred and that the beneficiary's duties are primarily those of an executive or manager. In support, counsel
supmits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the aben performed abroad.
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The regulation at 8 C.F.R. § 2 I4.2(1)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Fonn 1-129, accompanied by the following:
(A) Evidence that the United States ~nd foreign entities are still qualifying
organizations as defined in paragraph (J)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (I)(l)(ii)(H) of this section for the previous year;
(C) A statement of the duties perfonned by the beneficiary for the previous year
and the duties the beneficiary will perfonn under the extended petition;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary wiH be employed in a
managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1IOl(a)(44)(A), defines the tenn "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 V.S.C. § 1 101(a)(44)(B), defines the term "executive capacity" as an
SRC 06 03853260
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assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in 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 on appeal counsel asserts that the beneficiary could be classified as
either an executive or a manager. It is noted that 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 is
representing the beneficiary as either an executive or a manager, it must establish that the beneficiary meets
one set of the four criteria set forth in the statutory definition for executive or the statutory definition for
manager.
The petitioner described the beneficiary's job duties in a letter dated October 28, 2005. As this letter is in the
record, the job description will not be repeated here. The petitioner also asserted in both the Form 1-129 and
the letter dated October 28, 2005 that it employs two people including the beneficiary. The other employee is
allegedly a "designer and artist." Finally, the petitioner provided two letters dated November 7, 2005
indicating that both the beneficiary and the "designer and artist" have received income from the petitioner for
services rendered. While these letters indicate that the beneficiary is actually employed on a contract basis,
the letters do not clarify the employment relationship with the "designer and artist."
On November 30, 2005, the director requested additional evidence. The director requested, inter alia, the
following:
Submit a definitive statement describing the proposed U.S. employment of the beneficiary,
including:
• Number of employees who will report directly to the beneficiary;
• A brief description of their job titles and duties; give their educational background;
• If the beneficiary will not supervise other employees, specify what essential function
within the organization he will manage.
In response, the petitioner submitted a letter dated December 5, 2005 in which it further described the
beneficiary's job duties as follows:
Although [the beneficiary] does not and will not immediately supervise laborers themselves
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he will establish policies to be followed by the contractors and subcontractors. He oversees
the overall expenditures of subcontractors to ensure that projects are being completed as close
to the estimated projections as possible. He will make the final decision as to material and
customer pricing, although the actual selections of the materials and designs will be made by
the designer along with the contracted laborers. With the counsel and input of subcontractors
and designers [the beneficiary] has the authority to fire personnel and to recruit other
subcontractors and designers.
The key functions performed by [the beneficiary] involve the monitoring of all operational
strategies bearing on marketing and the financial performance and profitability of the
company. He exercises plenary latitude with regards to discretionary decision making on all
day to day activities.
As the Executive Manager of [the petitioner], [the beneficiary] is primarily engaged in
executing executive and managerial functions. These include but are not limited to designing
and approving financial and operational strategies; setting overall company goals in regards
to profitability and marketing; negotiating with contractors, subcontractors in regards to
offers submitted by and to the company by subcontractors vendors and vice versa. [The
beneficiary] will continue to plan, formulate and implement all administrative and operational
policies and procedures for the corporation.
This is an essential position since the success of all the corporations will be dependent on [the
beneficiary] properly overseeing the submission and preparation of offers. Additionally, he
will use his business acumen, experience and skill with regard to hiring appropriate
personnel, implementing standards and ensuring that such standards are complied by all
employees, both executive/managerial and non-managerial of the corporation.
[The beneficiary's] engineering background along with his operational & managerial
experience within the manufacturing and service enterprises ensures that [the beneficiary] is
able to more effectively negotiate service contracts and properly deal with any issues bearing
on the aspects of this enterprise: such as quality control; marketing strategies directed at
subcontractors and commercial real estate enterprises in order to increase the market share;
and any issues which may arise in regards to structural compliance.
Because the company thus far has dealt with licensed and experienced subcontractors
structural compliance issues have been rare. However, [the beneficiary's] experience and
educational background are essential in communicating with subcontractors in regards to
structural problems which cannot be resolved by the designers and laborers; licensing and
safety compliance issues; and in negotiating contract terms.
The petitioner also asserts in the December 5, 2005 letter that it employs the beneficiary and the "chief
designer," who was previously described as the "designer and artist" in the October 28, 2005 letter. The
petitioner explained that the "chief designer," who is actually an independent contractor, and various
"subcontractors" all report to the beneficiary, although those laborers having "design or construction issues"
SRC 06 038 53260
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report to the "chief designer." Finally, the petitioner described three other independent contractors currently
providing labor services to the petitioner.
The petitioner also submitted a letter dated December 7, 2005 explaining that the petitioner has no
"employees." Both the beneficiary and the "chief designer" are compensated as independent contractors.
On December 23,2005, the director denied the petition concluding that the petitioner did not establish that the
beneficiary will be employed in the United States in a primarily managerial or executive capacity.
On appeal, counsel to the petitioner asserts that the director erred and that the beneficiary's duties are
primarily those of an executive or manager. Counsel further argues that the director failed to properly request
additional evidence regarding the beneficiary's duties in the United States before denying the petition.
Finally, counsel submitted on appeal copies of Forms 1099 indicating that the petitioner compensated the
beneficiary, the "chief designer," and two other independent contractors in 2005.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.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 administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id.
The petitioner's description of the beneficiary's job duties has failed to establish 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. Fot example, the petitioner states that the beneficiary will monitor, design, and approve all financial
and "operational strategies" bearing on marketing and financial performance; will set overall company goals
in regards to profitability and marketing; will plan, formulate, and implement all administrative and
operational policies and procedures; and will implement standards. However, the petitioner does not
specifically define these "operational strategies;" does not explain what goals will be set; and does not explain
what policies, procedures, or standards will be implemented. The fact that the petitioner has given the
beneficiary a managerial title and has prepared a vague job description does not establish that the beneficiary
will actually perform managerial 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. Sava, 724 F. Supp. 1103 (E.D.N.Y.
1989), ajJ'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not
SRC 06 038 53260
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sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
many duties ascribed to him. This is particularly important in this matter because many of the duties listed by
the petitioner appear to be non-qualifying 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 oversees
expenditures made by contractors; sets prices for contracts; negotiates with contractors; and communicates
with contractors regarding structural problems, licensing, issues, and safety compliance matters. However,
supervising laborers and negotiating service contracts are administrative or operational tasks when the tasks
inherent to these duties are performed by the beneficiary. As the record fails to identify any employees or
contractors who will relieve the beneficiary of the need to perform the non-qualifying tasks inherent to these
duties, it must be concluded that he will perform these tasks. Moreover, given that the record is devoid of any
evidence that a subordinate staff is available to relieve the beneficiary of performing those administrative or
operational tasks inherent to the general management of a small business, e.g., processing invoices, paying
bills, keeping records, and answering the telephone, it must be concluded that the beneficiary will perform
those non-qualifying tasks as well. As the petitioner has not established how much time the beneficiary will
devote· to such non-qualifying tasks, 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 "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 Malter ofChurch Scientology International, 19 I&N Dec. 593, 604 (Corom. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the job descriptions for the subordinate staff members, the beneficiary appears to supervise a
staff of one contractor and, intermittently, the provision of certain specialized services by two or three
contracted service providers. However, the petitioner has not established that any of the subordinate
contractors are primarily engaged in performing supervisory or managerial duties. To the contrary, it appears
that these staff members are performing the tasks necessary to produce a product or to provide a service.
Also, the supervision or management of independent contractors will not permit a beneficiary to be classified
as a managerial employee as a matter of law. See section 101(a)(44)(A)(ii) of the Act; 8 C.F.R. §
214.2(l)(1)(ii)(B)(2). The Act is quite clear that only the management of employees, not contractors, will be
considered qualifying duties for purposes of this visa classification. In view of the above, the beneficiary
would appear to be primarily a first-line supervisor of non-professional employees, the provider of actual
services, or a combination of both. A managerial 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.
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
Moreover, as the educational background and skill level of the subordinate contractors would not pennit these
workers to be classified as professionals, the petitioner has not established that the beneficiary will manage
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professional employees.! Therefore, the petitioner has not established that the beneficiary will be employed
primarily in a managerial capacity.2
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" 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. 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 because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
'In evaluating whether the beneficiary manages professional employees, the AAO must also 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 by 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.O. 1966).
2While the petitioner has not clearly argued that the beneficiary will manage an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies 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 must furnish 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 establish the proportion of the
beneficiary's daily duties attributed to managing 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 ben~ficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary will primarily be a first-line manager of non-professional employees and/or is engaged in
performing non-quahfying operational or administrative tasks. Absent a clear and credible breakdown of the
time spent by thebeneficiary performing his duties, the AAO cannot determine what proportion of his duties
would be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function
manager. See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
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and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." !d. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be acting 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 on a day-to-day
basis. Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line
supervisor and to be performing tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.3
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., Systronics Corp. 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 has been "doing business" for the
previous year as required by 8 C.F.R. § 214.2(1)(l4Xii)(B). "Doing business" is defined in pertinent part as
"the regular, systematic, and continuous provision of goods and/or services." In this matter, the original "new
office" petition was approved on or about December 23,2004. However, as admitted by counsel on appeal,
the petitioner "was not fully operational until April 2005" because the beneficiary "was unable to travel to the
3As indicated above, counsel asserts on appeal that the director failed to properly request additional evidence
regarding the beneficiary's duties in the United States before denying the petition. Specifically, counsel
argues that the director never requested more information regarding the beneficiary's purported executive
duties in the United States and, if he had, "perhaps the response would have reiterated or further explained or
expanded its previous submission in this category." Upon review, the AAO disagrees with counsel's
observation. First, the director's Request for Evidence requests a "definitive statement describing the
proposed U.S. employment of the beneficiary." While this Request for Evidence may not have specifically
requested further evidence regarding the beneficiary's purported executive duties, the Request for Evidence
was certainly specific enough to put the petitioner on notice that the beneficiary's job description was
inadequate. The purpose of a Request for Evidence is to elicit further information that clarifies whether
eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. §§
103.2(b)(8) and (12). Second, even assuming that the director had failed to request evidence before denying
the instant petition, it is not clear what remedy would be appropriate beyond the appeal process itself The
petitioner had an opportunity to supplement the record on appeal if it felt that additional reiteration,
explanation, or expansion was necessary. However, the petitioner has chosen not to provide any additional
evidence regarding the beneficiary's purported managerial or executive duties on appeal. It would serve no
useful purpose to remand a case simply to afford a petitioner an opportunity to supplement a record with new
evidence when a petitioner has this opportunity on appeal in situations where the director denies a petition for
insufficiency of evidence without first providing a petitioner with an opportunity to supplement the record
through a Request for Evidence.
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US until April, 2005." The petitioner also explained in its letter dated December 5, 2005 that it "was only
actively generating income for 8 months" before filing the instant petition. Finally, the lease submitted by the
petitioner as evidence of its business activities is not for a commercial space. Rather, the submitted lease is
for a residence. Therefore, as the petitioner and its counsel have both indicated that the petitioner had not
been doing business for the previous year and because the petitioner has not established that it has maintained
physical premises sufficient for the petitioner's business operations, the petition may not be approved for this
additional reason.
Beyond the decision of the director, the petitioner has not established that it still has a qualifYing relationship
with the foreign entity.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifYing organizations as
defmed in paragraph (l)(l)(ii)(G) of this section[.]
Title 8 C.F.R. § 214.2(1)(l)(ii)(G) defines a "qualifYing organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the defmitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or indirectly, more than
half of the entity and controls the entity."
In this matter, the petitioner asserts that it is 60% owned, and thus controlled, by the foreign entity. In support of
this assertion, the petitioner submitted organizational documents and a stock certificate purporting to represent the
issuance of 60 shares of stock to the foreign entity. However, the petitioner also submitted a copy of its 2004
Form 1120, U.S. Corporation Income Tax Return, in which the petitioner avers that it is not a subsidiary, that no
individual or corporation owns 50% or more of its voting stock, and that no foreign person owns 25% of its stock.
All three of these averments in the Form 1120 are inconsistent with the petitioner's assertion in the Form 1-129
that it is 60% owned by the foreign entity. The petitioner offers no explanation for this fundamental
inconsistency in the record. 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 ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988).
In view of this inconsistency, the petitioner has not established that it has a qualifying relationship with the
foreign entity, and the petition may not be approved for this additional reason.
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). 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.
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An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th CiT. 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 be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving 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.
ORDER: The appeal is dismissed.