dismissed L-1A Case: Marketing And Advertising

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PUBLIC'COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington , DC 20 529
u.s.Citizenship
and Immigration
Services
.,..:.,
File:
INRE:
" '
I
WAC 04 005 52931 Office: CALIFORNIA SERVICE CENTER Date:
Petitioner :
,Beneficiary :','
, \.
NOV 2"[ 2005
Petition : .Petition for aNonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and National ity Act, 8 U.S.c. § 1l01(a)(15)(L)
ON 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.
~ief . ·VAdministrative Appeals Office
www.uscis.gov
WAC 04 00552391
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 petition seeking to extend the employment of its president as an L-l A
nonimmigrant intracompany transferee pursuant to section lOl(a)(l5)(L) of the Immigration and Nationality
Act (the Act) , 8 U.S.c. § l101(a)(l5)(L) . The petitioner was incorporated in April 1998 under the laws of the
State of California and states that it is engaged in the provision of marketing and advertising services . The
petitioner claims to be a subsidiary of ocated in Mumbai, India. The
beneficiary was previously granted L-1A sta us om March 8, 1999 until March 8, 2000, from March 8 , 2000
until September 10, 2000, and from October 25, 2000 until October 14, 2003. The petitioner now seeks to
extend the beneficiary's L-1A status for two additional years.
The director denied the pet ition concluding that the petitioner did not establish that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition . The director observed
that the U .S. company "is not generating enough business to support an execut ive or managerial position ."
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 for the petitioner asserts that-the U .S.
company was dormant for the period from December 2000 until December 2002 , but has now grown to a size
that can support the beneficiary in a managerial capacity. Counsel requests that the petitioner be granted a
one-year period of approval under the new office provisions of 8 C.F .R. § 214.2(1) in the event that the full
three-years requested cannot be granted. Counsel submits a brief and additional evidence in support of the
appeal.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 10l(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 indi vidual 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 (1)O)(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 .
WAC 0400552391
Page 3
(iii) Evidence that the alien has at least one continuous year of fuil 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 hirn/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 issue in the present matter is whether the beneficiary will be employed by the United States entity ina
primarily managerial 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
assignment withi~ an organization in which the employee pri!TIarily:
(i) managesthe organization , or a department, subdivision , function , or component of '
the organization;
, (ii) supervises and controls the work of other supervisory, professional, or managerial
employees , or manages an essential function within the organization , or a department
or subdivision of the organization ;
(iii) if another employee or other employees are directly supervised , has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the ,employee has authority. A first line 'supervisor is not considered to be
,acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act , 8 U.S.c. § 1101(a)(44)(B), defines the term ' "executive capacity" as an
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
WAC 04 00552391
Page 4
. '-
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization .
The nonimmigrant petition was filed on October 6, 2003. On the L classification supplement to Form 1-129,
the petitioner indicated that the beneficiary's duties will include the following :
Responsible for setting up & developing the recruitment & placement business, & managing
the marketing of our advertising services. Will spend 30% of his time developing recruitment
business, & 70% of his time managing marketing of our advertising services. Responsible for
directing all new business development.
In an appended letter , the petitioner provided the following descriptiori for the beneficiary's duties as
marketing manager:
[The beneficiary 1is responsible for overseeing and directing all new business development '
activity from the proposal phase to the final determination of whether [the petitioner] can
provide the partnership fit appropriate for the prospective client's requirements. He is also
directing the [petitioner 's] staff responsible for marketing research and the development of
the marketing strategy that is the blueprint behind each client's advertising , collateral and on­
line programs . He serves as the final arbiter of the creative concept that drives both the verbal .
content and visual design of all [the petitioner 's] projects. [The beneficiary] will directly
supervise one employee: Manager -Accounts . He will .indirectly superv ise two employees :
The petitioner provided an organizational chart which depicts a staff of ten people, including a president, who
supervises a consultant for ,new business development, the beneficiary , and a vice president. The
organizational chart identifies six employees subordinate to the beneficiary, including a consultant-accounts ,
photographer, web design consultant, copywriting consultant, freelance graphic designer, and a proposed
manager-accounts position . The petitioner also submitted its California Form DE-6 , Quarterly Wage and
Withholding Report, for the second quarter of 2003, which identified the beneficiary as the company 's sole
employee.
In addition, the petitioner submitted a business plan for th e U.S. company , dated October 2, 2003 , in which it
stated that the beneficiary obtained his L-l visa approval in October 2000 but "decided to postpone his
arrival" to the United States. According to the business plan, "the active operations " of the U .S. ~ompany
began in early 2003. The petitioner noted on Form 1-129 th~t the beneficiary had been in the United States in
L-1 status from September 1999 through November 1999, and from December 1999 until July 2000 , before
returning to the United States In December 2002 to resume his employment with the petitioner.
The director issued a request for evidence on October 12, 2003, in which she instructed the petitioner to
submit the following: (I ) an organizational chart for the U.S. company which clearly identifies the
beneficiary's position and the name and job title of all employees under his supervision; (2) a brief
WAC 04 005 52391
Page 5
description of the job duties, educational level and annual salaries for all employees under the beneficiary 's
supervision; (3) copies of California Form DE-6 , Quarterly Wage and Withholding Report , for the last three
quarters; (4) copies of IRS Form 941, Employer 's Quarterly Federal Tax Return , for the last three quarters;
(5) copies of the U .S. company 's payroll summary and Forms W-2 and W-3 , evidencing wages paid to
employees; and (6) signed and certified copies of the petitioner's IRS Form 1120 , U.S. Corporation Income
Tax Return , with all required schedules, for the last tax year.
The petitioner submitted an organizational chart depicting the beneficiary as president over a secretary, a sales
manager and a merchandiser. The organizational chart shows that the sales manager supervises two sales
people and a warehouse operator. The petitioner submitted its California Form DE-6, Quarterly Wage and
Withholding Report , for the fourth quarter of 2004. All seven employees identified on the organizational chart
are listed; however , the chart indicates that the company employed six people in October 2004, and only five
people in November and December 2004.
In a response dated October 20 , 2003, the petitioner stated that the beneficiary supervises seven employees
including: a copywriting consultant, a graphic designer, a web designer, a consultant-accounts , and a
photographer who are all paid on a "project basi s"; a manager-accounts who would be paid an annual salary
of $36,000; and a business and market ing analyst 'who would be paid an annual salary of $48,000. The
petitioner provided a brief job description for each pos ition. The petitioner also provided a copy of an offer
letter addressed to the individual identified as business and marketing analyst, which indicated that he would
commence employment with the company on November 1,2003. The petitioner did not provide evidence of
employment of the manager-accounts or the claimed consultants.' The company's Form DE-6, Quarterly
Wage and Withholding Report, for the third quarter of2003 identifies the beneficiary as the sole employee of
the company as of September 30,2003.
The petitioner emphasized that the U.S. company "is a start-up that has only recently become active " and
noted its intention to hire a creative director and an art director "in the next couple of months." Finally, the
petitioner submitted its 2002 IRS Form 1120, U.S . Corporation Income Tax Return, which shows no receipts
or sales, no purchases, no cost of labor or other costs, and salaries and wages of $389 for the year ended on
March 31,2003.
The director denied the petition on November 6, 2003, concluding that the petitioner had failed to establish
that the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director noted the U.S. company had not generated any income during the 2002 tax year and
had paid only $3 89 in wages to employees . The director concluded that the petitioner had not submitted
evidence that the beneficiary has been and will be managing a subordinate staff of professional, managieral or
supervisory personnel who would relieve him from performing non-qualifying duties. The director further
. 1 It is noted that the employee identified as "manager-accounts" was the beneficiary of an approved L:·lA
petition filed by the instant petitioner, and valid from June 15,2000 until June 15 ,2003. A review of U.S.
Citizenship and Immigration Services (USCIS) records reveals no subsequent petitions filed on behalf of this
individual.
WAC 04 005 52391
Page 6
observed that "the record shows that the company is not generating enough business to support an executive
or managerial position."
On appeal, counsel for the petitioner asserts that the beneficiary's position will be managerial in nature, and
that the company, although dormant from December 2000 until December 2002, is currently generating
sufficient business to support such a position. In a letter dated December 3,2003, the petitioner notes that the
U.S..company generated $100,000 in revenues during the first three quarters of fiscal year 2003. The
petitioner further states:
[The beneficiary] is an important member of [the petitioner's] management team and the key
person for its growth. He is responsible for recruiting, training, and managing staff for market
research and creative functions; overall execution and implementation of marketing strategy;
product positioning; and developing corporate image. [The beneficiary] is responsible for
overseeing the work of ... full-time employees and has the authority to hire and fire the
persons he supervises.
*. * *
We would also like to emphasize that [the beneficiary] continues his managerial duties for 15
staff members in the Indian head office. He maintains day.to day operational responsibility
for the execution and implementation of projects undertaken in India as well as in the US ,
and provides strategic and creative direction.to both US and India based staff.
The petitioner submits payroll records indicating that a graphic designer and business and marketing analyst
were hired by the petitioning company on November 1, 2003. The petitioner also provides a new
organizational chart for the U.S. entity which depicts the beneficiary supervising the newly-hired graphic
. designer and marketing analyst, four consultants, and fifteen employees of the foreign entity.
I
Finally, counsel requests that in the event that the petitioner cannot be approved for a full three years, the
beneficiary be granted a one-year period under the "new office provisions of 8 CFR Section 214.2(1)."
Upon review, counsel's assertions are not persuasive. 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(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be
performed by the beneficiary and indicate whether such duties are either in an executive or managerial
I capacity.Id.
Further, the definitions of executive and managerial capacity have two parts. First, the petitioner must show
that the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must. show that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
;
WAC 04 005 52391
Page 7
The petitioner has provided a vague and general description of the beneficiary 's duties that fails to convey
what tasks he will actuall y perform on a day-to-day bas is. For example the petitioner indicated on Form 1­
129 that the beneficiary will devote 30 percent of his time to developing the U.S . company 's recruitment and
placement business. .The petitioner did not describe the actual duties the beneficiary would perform to
"develop" this area of business, nor did it indicate that any of the claimed subordinate employees would
perform any duties related to this market segment. Furthermore , the petitioner 's business plan makes no
reference to the U .S. company's plans to develop a recru itment business. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg . Comm. 1972». Without additional explanation, it cannot be concluded that the
beneficiary would perform primarily managerial or executive duties related to the development of a
recruitment and placement business. The actual duties themselves will reveal the true nature of the
employment. Fedin Bros. Co ., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989) , aff'd, 905 F.2d 41 (2d .
Cir. 1990).
The petitioner indicated that the beneficiary would allocate the remaining 70 percent of his time to managing
marketing of the company 's advertising services and "directing all new business development." The petitioner
noted that the beneficiary would supervise employees "responsible for marketing research and the
development of the marketing strategy" and would serve as the "final arbiter of the creative concept " for each
client 's project. However , as discussed further below, the record does not contain evidence that the petitioner
employed any staff other than the beneficiary as of the date the petition was filed. Furthermore, the petitioner
did not claim to ha ve any lower-level employees who would be responsible for marketing and selling the
petitioner's services, as opposed to providing marketing services to clients. It is reasonable to assume, and
has not been shown otherwise, that the beneficiary himself, 'as the petitioner 's sole full-time employee, was
directly responsible for marketing and selling the petitioner's services to clients , and was directly involved in
providing services to the petitioner's clients. An employee who "primarily" performs the tasks necessary to
produce a product or to provide services is not considered to be "primarily" employed in a managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also .Matter of Church Scientology Int'l., 19 I&N Dec. 593,
604 (Comm.1988).
Collectively, the lack of specifics in the beneficiary's job description and the absence of subordinates to
perform many of the duties that the beneficiary will purportedly "direct" or "manage" brings into question
how much of the beneficiary's time can actually be devoted to managerial or executive duties. As stated in
the statute , the beneficiary must be primarily performing duties that are managerial or executive. See sections
101(a)(44)(A) and (B) of the Act. Furthermore , the petitioner bears the burden of documenting what portion
of the beneficiary's duties will be managerial or executive and what proportion will be non-managerial or non­
executive. Republic of Transkei v. INS, 923 F.2d 175 , 177 (D.C. Cir. 1991). Given the lack of a credible
breakdown of the beneficiary 's actual duties and the proportion of time he will allocate to each duty , the
petitioner 's job description does not demonstrate that the beneficiary will function primarily as a manager or
executive.
WAC 04 00552391
Page 8
Without a comprehensive job description of the beneficiary's duties on which to base his determination , the
director looked to the petitioner's staffing levels . in order to determine whether the beneficiary could be
deemed to be serving in a primarily managerial or executive capacity. It should be noted that a company's
size alone, without taking into account the reasonable needs of the organization , may not be the determining
factor in denying a visa to a multinational manager or executive . See § 101(a)(44)(C) of the Act, 8 U.S.c.
§ 1101(a)(44)(C). However, 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). Regardless, the reasonable needs of the petitioner serve only as a factor in
evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties . The
petitioner must still establish that the beneficiary is to be employed in the United States in a primarily
managerial or executive capacity , pursuant to sections 101(a)(44)(A) and (B) of the Act. As discussed above,
the petitioner has not established this essential element of eligibility.
At the time of filing, the petitioner was a five-year-old company that claimed to be engaged in the provision
of marketing, advertising and related services . Accordingly, the petitioner reasonably requires employees to
meet with clients and potential clients to determine their marketing and advertising needs, to prepare and
submit proposals and presentations to clients, to respond to customer inquiries , to perform market research,
copy writing, graphic design, web site design and other services for client projects , to market and sell the
petitioner's services, and to perform the day-to-day administrative, financial and clerical tasks associated with
operating any business . The petitioner has provided various accounts regarding its staffing structure.
Specifically, the petitioner indicated on Form 1-129 that it had two full-time employees and four to five
consultants; indicated on its organizational chart that it had-a total of ten consultants and employees, seven of
which are managed by the beneficiary; indicated in a letter submitted in support of the petition that the
beneficiary would supervise one direct and two indirect subordinates; and indicates on appeal that the
beneficiary will manage a total of 22 people, including a large staff located in India . 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).
Regardless, as noted by the director, the record does not contain evidence that the petitioner employed anyone
other than the beneficiary as of October 6, 2003 when !he petition was filed. The petitioner claimed to employ
up to six employees on a "project" or contract basis , but has provided no documentary evidence in support of
this claim . The director specifically requested evidence of wages paid to employees. Although the petitioner
did not pay "wages" to these employees per se, it is reasonable to expect the petitioner to submit evidence of
payments to contract employees, particularly when such employees constitute the bulk of the petitioner's
claimed staff. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds
for denying the petition ; 8 C.F .R. § 103.2(b)(14). In the absence of evidence such as contracts or canceled
checks documenting the employment of the contracted employees, the petitioner has not established that the
petitioner employs a subordinate staff that would relieve the beneficiary from performing non-qualifying
duties associated with providing the petitioner's services.
WAC 04 005 52391
Page 9
Although the director specifically referenced the absence of employees to p erform the .non-managerial
functions of the petitioning company, counsel does not discuss the contracted employees on appeal or submit
. evidence that the petitioner did in fact employ the claimed staff at the time of filing. Counsel instead
emphasizes that the petitioner hired two full -time payroll employees on November 1 , 2003, approximately
one month after the pet ition was filed , and notes that the company expects to expand rapidly and hire
, additional employees in the future. However, the petitioner must establish eligibility at the time of filing the ,
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner 'or
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp ., 17 I&N Dec. 248 (Reg.
Comm. 1978).
Finally, even if the AAO were to consider the newly-hired marketing analyst and graphic designer, these two
employees would only relieve the beneficiary from performing duties related to market research and graphic
design work for client projects. Additionally, the petitioner has not explained how the newly-hired employees
would obviate the need for the beneficiary to primar ily conduct the petitioner's business and perform non­
qualifying duties associated with day-to-day marketing, sales, financial and administrative functions.
The petitioner .has not provided a comprehensive description of the beneficiary 's duties, nor has itestablished
that it employs a staff who would will relieve the beneficiary from primarily performing non-qualifying duties
, associated with operating the petitioner's business. Regardless of the beneficiary's position title, the record is ,
not persuasive that the bene~ciary will function at a senior level within an organizational hierarchy. Even
though the enterprise claims to be in 'a preliminary stage of organizational development five years after its
establishment, the petitioner is not relieved from meeting the statutory requirements. Based on the limited
documentation furnished, it cannot be found that the beneficiary will be employed primarily in a qualifying
managerial or executive capacity. For this reason , the appeal will be dismissed.
, It is noted that counsel has requested on appeal that the beneficiary be granted a one-year period of approval
under the regulations governing "new offices" at 8 C .F.R. § 214.2(l)(3)(v). The petitioner may not be granted
a second "new office" L-l A visa approval more than four years after its initial new office approval. The L­
lA nonimmigrant visa is not an entrepreneurial visa classification that would allow an alien a prolonged stay
in the United States in a non-managerial or non-executive capacity to start up a new business . The regulations
allow for a one-year period for a U.S. petitioner to commence doing business and develop to the point that it '
will support a managerial or executive position . By allowing multiple petitions under the more lenient
standard, CIS would in effect allow foreign entities to create under-funded , under-staffed or even inactive
companies in the United States, with the expectation that they could receive multiple extensions of their L-l
status without primarily engaging in managerial or executive duties. The beneficiary in this matter was
initially granted a one-year period of approval to establish a new office, obtained an additional six months to
establish the new office after delaying his initial entry to the United States by six months , and then obtained a
three-year period of approval to serve as the marketing manager of the U.S . company. The petitioner now
claims that the U .S. company never commenced operations until several months prior to the instant request
for an extension 'of the beneficiary 's stay. However , the petitioner may no longer be considered a "new
office" as that term is defined at 8 C.F .R. § 214.2(l)(I)(ii)(F).
WAC 04 005 52391
Page 10
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by
CIS regulation, that allows for amore lenient treatment of managers or executives that are entering the United
States to open a new office. When a new business is first established and commences operations , the
regulations recognize that a designated manager or executive responsible for setting up operations will be
engaged in a variety of low level activities not normally performed by employees at ~he executive or
managerial level and that often the full range of managerial responsibility cannot be performed in that first
year. In an accommodation that is more lenient than the strict language of the statute, the "new office"
regulations allow a newly established petitioner one year to develop to a point that it can support the
employment of an alien in a primarily managerial or executive position. The petitioner in this matter has been
given four years to establish the U.S. business and will not be exempted from the regulatory requirements
based on its decision to leave the U.S. operations dormant for a long period of time.
The AAO acknowledges that the beneficiary was previously granted a three-year period in L-IA classification
to serve as the petitioner's general manager, subsequent to the expiration of the initial new office period.
Each nonimmigrant petition is a separate record of proceeding with a separate burden of proof; each
individual petition must stand on its own individual merits. See 8 C.F.R. § 103.8(d). In making a
determination ofstatutory elig ibility, CIS is lim ited to the information contained in that individual record of
proceeding. See 8 C.F.R . § 103.2(b)(16)(ii). The prior approvals do not preclude CIS from denying an
extension of the original visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v.
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 ·(5th Cir. 2004) . Due to the lack ?f required evidence of
eligibility in the .present record , the AAO finds that the director was justified in departing from the previous
approval by denying the present extension petition .
The AAO is not required to approve applications or petitions where eligibility has .not been demonstrated,
merely because of prior approvals that may have been erroneous. See, e.g. Matt er 'o j Church Scientology
International, 19 I&N Dec . 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084 , 1090
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). In this case, the petitioner claims that the U.S. company
commenced operations in 2003. Therefore, it appears that, either the petitioner did not comply with this
requirement, misrepresented that they had complied , or the director committed gross error in approving the
petition filed in 2000 without evidence that the U.S . company was doing business. Regardless , the approval of
the most recent prior pet ition is clearly subject to revocation based on the evidence submitted with this
petition. See 8 C.F.R. § 214.2(l)(9)(iii) .
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district ·c~:)llrt . Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary , the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS , 2000 WL 282785 (E.D. La .), affd , 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
Finally, it should be noted that, according to California State corporate records , the petitioner's corporate
status in California has been "dissolved." See http://keppler.ss.ca .gov/corpdata. Therefore, as the petitioner
has voluntarily elected to wind-up its operations and has completely dissolved its business as a corporation ,
WAC 04 005 52391
Page 11
the company ' no 'longer exists and can no longer be considered a legal entity in the United States. It is
fundamental to this nonimmigrant classification that there be a United States entity to employ the beneficiary.
In order to meet the definition of "qualifying organization," there must be a United States employer. See 8
C.F.R. 214 .2(l)(l)(ii)(G)(2). The dissolution of the U.S. company would clearly and unequivocally render
the beneficiary ineligible for the requested classification : As it is assumed that any dissolution occurred
subsequent to the filing of the instant appeal, the AAO notes the deficiency for the record and will not discuss
this issue further.
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), 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 be denied for the above stated reasons , with each considered as an independent and
'alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely 'with thy petitioner. Section 291 of the Act, 8 U.S.c. § 1361. , Here, that burden has
hot been met.
ORDER: The appeal is dismissed.