dismissed L-1A Case: Marketing And Media Relations

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PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 06 013 52824 Office: TEXAS SERVICE CENTER Date: AUG 0 6 2007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 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
the office that originally decided your case. Any further inquiry must be made to that office.
~
..."._.,-'-'"..-
( ~._--~
Robe . Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 013 52824
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 vice
president/director as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation
organized under the laws of the State of Florida and is allegedly engaged in the business of marketing,
research, and media relations. 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, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive or manager. In support of this assertion, the
petitioner submits a brief and additional evidence.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the 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 him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
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The regulation at 8 C.F .R. § 214.2(1)( 14)(ii) also provides that a visa petition, which involved the opening of 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) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (1)(1)(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation , including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will 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 . § 1101(a)(44)(A) , defines the term "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 U.S.C. § 1101 (a)(44)(B) , defines the term "executive capacity" as an
SRC 06 013 52824
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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. 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 indeed
representing the beneficiary as both an executive 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.
The petitioner described the beneficiary's job duties in a letter dated October 6, 2005 as follows:
• Control sales records and regularly inform the progress of the U.S. company, so [the
foreign entity] can assess the status of its investment;
• Budget and resource allocation decisions;
• Hire and train employees;
• Leadership technique and coordination of employees;
• Decisions about methods for showing, promoting and selling [the beneficiary's]
products and services;
• Decisions about marketing strategy and tactics, sales techniques and sales control
systems, pricing and negotiation;
• Evaluation of customer satisfaction;
• Maintenance of control procedures, which were established by her, to ensure that the
U.S. financial [s]tatements will be combined with statements of [the foreign entity] in
a form that allows the foreign company to understand the meaning of the information
and use it effectively. Rather, the financial reporting model sent to the holding [sic]
must use the same recognition criteria and measure methods;
• Ensure that Financial Statements will also meet regulations and Federal Laws in
Brazil;
• Asset management (inventory, cash, receivables and investments);
• Design and implement the Organizational Structure of the U.S. Company, altering
the current organizational chart.
The petitioner also submitted a document titled "Duties & Responsibilities" related to the beneficiary's
SRC 06 013 52824
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employment with the petitioner. This document identifies the beneficiary's position as "Vice-President­
Operations," and lists her duties as follows:
• Establish objectives for the company and formulate or approve policies and programs
• Allocate funds to implement company policies and programs
• Establish Administrative and Financial controls
• Select or approve staff to be employed by the company
• Coordinate work within the varying tasks within the Company
• Represent the Company with Customer and Vendors and Negotiate on behalf of the
Company
• Create and implement solicitation programs to establish and increase Company
market share
• Create and Provide Customers with a tailored scope of services proposal predicated
on their respective industry and target market
• Oversee and plan advertising; marketing and public relations campaigns specific to
Customer needs.
• Ensure with directing staff that suitable product is produced for the customer and
time schedules are met
• Coordinate tasks internally and with outsource strategic partners
• Liaison with superiors in Brazil - Preparing and providing Company administrative
and financial report as to U.S. based operations
• Exercise complete day[-]to[-]day discretionary authority over Administrative ,
Financial, and Art operations and staff of the Company.
Also, the petitioner provided wage reports indicating that the petitioner employed three people, including the
beneficiary , during the quarter immediately preceding the filing of the instant petition as well as copies of
cancelled checks which allegedly represent payments made to contractors not listed on the wage reports. This
evidence is generally consistent with the letter dated October 6, 2005 in which the petitioner alleged that it
currently employs 3 employees and several independent contractors.
On November 15, 2005, the director requested additional evidence. The director requested , inter alia, an
organizational chart for the petitioner , which reveals the names, titles, and job descriptions for each employee,
and copies of the petitioner's wage reports.
In response, the petitioner provided an organizational chart which shows the beneficiary at the top of the
organization directly supervising 3 individuals . Two of these supervised individuals , the "marketing
supervisor" and the "account director ,II are, in tum, shown supervising 6 additional staff members. The third
staff member supervised by the beneficiary is described as a secretary. The petitioner explained in a letter
dated January 31, 2006 that it employs 9 individuals (3 employees and 6 independent contractors). The
petitioner provided wage reports and records which confirm that only three of the individuals identified on the
organizational chart are indeed employees (the beneficiary and 2 secretaries). Also, the petitioner provided
copies of "Master Contract Assignment Agreements" for each of the independent contractors identified in the
organizational chart. While these contracts each list hourly wages , the contracts explain neither the
contractors' duties nor the amount of time they are obligated to devote to the petitioner's business.
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Finally, the petitioner provided job descriptions for the subordinate staff members. As explained in the
organizational chart, the two other employees are secretaries and have been described as being engaged in
performing clerical duties. The two subordinate staff members who are identified in the organizational chart
as having supervisory responsibilities, the "marketing supervisor" and the "account director," are allegedly
independent contractors and are not employees of the petitioner. The "marketing supervisor" is described as
follows:
supervise and coordinate marketing staff;
assign duties to employees and c[0]ntractors;
evaluate work performance of staff;
coordinate and measure effectiveness of marketing campaign;
consulte [sic] with manager and other subordinates to resolve problems;
train employees;
assist in planning budget[.]
The "account director" is described as follows:
determine the demand for services offered and identify potential customers;
develop procedures and ensure the firm's customers are satisfied;
manage the hiring and coordinate performance evaluations of staff;
manage and coordinate staffs activities;
develop marketing strategies;
evaluate budgets, expenditures, research and return-on investment/profit-loss projections.
The remaining positions identified in the organizational chart are ascribed tasks necessary to the provision of
the petitioner's services. The remaining staff members have not been assigned supervisory or managerial
duties.
The "Master Contract Assignment Agreements" for the "account director" and the "marketing supervisor" list
their salaries as $20.00 per hour. While the petitioner provided copies of cancelled checks for several of the
independent contractors listed on the organizational chart, the petitioner failed to present any checks dated on
or before the petition filing date made payable to the two individuals identified as the "account director" or
the "marketing supervisor." The petitioner also failed to provide copies of Forms 1099, copies or examples of
work products, or any other evidence that the "account director" or the "marketing supervisor" were employed
by the petitioner in any capacity prior to the filing of the instant petition. The petitioner also failed to identify
these two alleged staff members in the letter dated October 6, 2005 appended to the initial petition.
On March 8, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager.
Upon review, the petitioner's assertions are not persuasive.
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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 must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner
cannot claim 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.
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 two vague and nonspecific
descriptions of the beneficiary's duties that fail to demonstrate what the beneficiary will do on a day-to-day
basis. For example, the petitioner states that the beneficiary establishes objectives, coordinates tasks, and
exercises complete day-to-day discretionary authority over the organization. However, the petitioner does not
explain what objectives will be established, what tasks will be coordinated, and what, exactly, the beneficiary
will do on a day-to-day basis in exercising complete discretionary authority over the organization. The fact
that the petitioner has given the beneficiary a managerial title and has prepared a vague job description which
includes lofty duties 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (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 her. 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 sets budgets,
trains employees, manages assets (including receivables), meets and negotiates with customers and vendors,
plans marketing and advertising campaigns, and prepares financial reports. Such duties as generally
described constitute administrative or operational tasks essential to the operation of almost any business and
appear related to the provision of the petitioner's services. Moreover, the supervision or management of
independent contractors is not a qualifying duty as a matter of law. See section 101 (a)(44)(A)(ii) of the Act; 8
C.F.R. § 214.2(1)(l)(ii)(B)(2). As the petitioner has not established how much time the beneficiary will
devote to such non-qualifying tasks, it cannot be confirmed that she will "primarily" be employed as a
manager. An employee who "primarily" performs the tasks necessary to produce a product or to provide
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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 ofChurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988).
Finally, the petitioner has not established that it employs a subordinate staff which could relieve the
beneficiary of the need to perform non-qualifying tasks inherent in the petitioner's business. As indicated
above, the petitioner asserts that the beneficiary supervises directly or indirectly two secretaries and six
independent contractors. While the secretaries may relieve the beneficiary of the need to engage in basic
clerical tasks, the role of the independent contractors has not been adequately defined. The petitioner failed to
establish how much time these contractors, who are paid by the hour, devote to the petitioner's business.
While the petitioner provided evidence that some of these contractors have been paid, it is unclear what
services they are providing, what services they will provide in the future, and for how long their services will
be needed. Therefore, based on the record, it cannot be confirmed that these independent contractors will
relieve the beneficiary of the need to perform non-qualifying tasks.
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory or managerial employees. As explained in the organizational chart, wage reports, and job
descriptions for the subordinate staff members, the beneficiary appears to supervise a staff of two employees
and six independent contractors. While the petitioner has given two of the independent contractors lofty
titles and has described the "marketing supervisor" and the "account director" as having supervisory or
managerial functions, the petitioner has not established that these alleged staff members are primarily
engaged in performing supervisory or managerial duties. First, the petitioner has not established that these
two "supervisory" independent contractors were employed by the petitioner at the time the instant petition
was filed. As explained above, the petitioner does not identify the "marketing supervisor" and the "account
director" in the initial petition and offers no evidence that these two staff members worked for the petitioner
in any capacity at the time the petition was filed. To the contrary, it appears that these two supervisory
independent contractors were engaged after the filing of the instant petition. 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 of Michelin Tire
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Second, the vague job descriptions for the "marketing
supervisor" and the "account director" fail to establish that these staff members are primarily engaged in
performing supervisory or managerial duties. Not only are their duties vaguely described, it is unclear how
much time the independent contractors actually devote to the petitioner's business. Third, as explained above,
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. §
2l4.2(l)(l)(ii)(B)(2). The Act is quite clear that a managerial employee must manage employees in order to
be classified as a manager 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 clerical 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. 1
lIt is noted that, on appeal, the petitioner makes reference to at least one additional staff member who was
hired after the adjudication of the petition. As indicated above, the petitioner must establish eligibility at the
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Moreover, the petitioner has not established that the beneficiary will manage professional employees. In
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 110l(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.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by subordinate employee. 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 professional capacity as that term is
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary to perform the duties of any of the beneficiary's subordinate employees. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.'
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 of Michelin Tire Corp., 17 I&N
Dec. 248. Therefore, the addition of staff after the filing of the petition is not relevant in these proceedings.
2While the petitioner has not specifically argued that the beneficiary manages 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. § 2l4.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, in
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. Absent a clear and credible
breakdown of the time spent by the beneficiary performing her duties, the AAO cannot determine what
proportion of her 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. U.s. Dept. ofJustice, 48 F. Supp. 2d 22, 24
(D.D.C. 1999).
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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"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. 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 services. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business
in a regular and continuous manner. See, e.g., 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, another issue in this matter is whether the petitioner has established that
the foreign entity is "doing business" and, thus, is still a qualifying organization.
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
defined in paragraph (l)(1)(ii)(G) of this section[.]
Title 8 C.F.R. § 214.2(i)(I)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(I)(ii) of this section" and "is or will be doing business." "Doing
Business" is defined in part as "the regular, systematic, and continuous provision of goods and/or services by
a qualifying organization." 8 C.F .R. § 214.2(1)(1)(ii)(H).
In support of its assertion that the foreign entity is still "doing business," the petitioner submitted two invoices
dated after the Request for Evidence which sought evidence of the viability of the foreign entity; an expired
contract for services; 2004 tax documents and financial data; and copies of information printed off of a
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website. Much of the tax documentation and the internet materials are untranslated and include no
explanation. Because the petitioner failed to submit certified translations of the documents, the AAO cannot
determine whether the evidence supports the petitioner's claims and thus will not be accorded any weight in
this proceeding. See 8 C.F.R. § 103.2(b)(3). None of the evidence presented establishes that the foreign
entity is currently engaged in the regular, systematic, and continuous provision of goods and/or services.
While it appears that the foreign entity may have had some business activity in 2004, the current petition was
filed on October 18, 2005. Moreover, while the two invoices submitted were generated in 2005, evidence of
two transactions will not establish that the foreign entity is conducting business in a regular, systematic, and
continuous fashion. Regardless, as these two invoices were dated after the filing of the instant petition and
also appear to concern "services" rendered after this date, this evidence is not relevant to these proceedings.
As indicated above, 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.
Accordingly, the petitioner has not established that the foreign entity is "doing business" and, thus, has not
established that the foreign entity is still a qualifying organization. For this additional reason, the petition
may not be approved.
The initial approval of an L-l A 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.
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), aff'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. 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.