dismissed L-1A Case: Oriental Medicine

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PUBLICCOpy
U.S. Department of Homeland Secllrity
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
o U.S.Citizenship
'" and Immigration
Services
File: LIN 05077 51484 Office: NEBRASKA SERVICE CENTER Date: Aft0I,.
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)(l5)(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.
-----~~.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 05 077 51484
Page 2
DISCUSSION: The Director, Nebraksa 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 president as an L­
lA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws
of the State of Colorado and alleges to be a provider of oriental medical services and products. The petitioner
claims a qualifying relationship as an affiliate with Jungwon Oriental Medicine Clinic in South Korea. 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 of this
assertion, counsel submits a brief. Specifically, counsel argues that the'beneficiary's job duties, as well as his
supervision of an office director and a physical therapist, qualify him as a manager or executive. Counsel
relies in part on guidance provided in the Foreign Affairs Manual.
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 (1)(I)(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
LIN 0507751484
Page 3
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.
I
The regulation at 8 C.F.R. § 2l4.2(lX14)(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 (l)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l)(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year
and the duties the 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 IOI(a)(44)(A) of the Act, 8 U.S.C. § 1l0I(a)(44)(A), defmes 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
LIN 05077 51484
Page 4
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(aX44)(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
(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 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 implies that the beneficiary is acting as both. 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. Given the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary is
acting either as a managerial or as an executive and will consider both classifications.
The petitioner described the beneficiary's duties in a letter dated January 6, 2005 and provided an
organizational chart for the United States operation. On February 16,2005, the director requested additional
evidence regarding the beneficiary's job duties and the petitioner's staffing. Specifically, the director
requested a more detailed statement of the duties performed by the beneficiary, a breakdown of how much
time he spends on each duty, a list of employees, a description of the employees' job duties, and educational
credentials for the employees. In response, the petitioner provided a letter dated May 6, 2005 in which it
describes the beneficiary's duties as follows:
i) Oversee business operations;
ii) Develop and modify on-going goals;
iii) Set long-term goals;
iv) Plan, forecast and establish budgets[;]
v) Evaluate financial projections including capital expenditure projections, patient fees
modules, P&L projections, cash flow projections to determine feasibility of each
phase of the operation;
vi) Has full, ultimate authority over personnel hiring and firing and[;]
vii) Provide guidance and have authority over all business policies and procedures.
The petitioner also provided a breakdown of the beneficiary's duties as follows:
LIN 05077 51484
Page 5
STRATEGIC DEVELOPMENT Fonnulate strategies and establish goals for current and 40%
OF U.S. ENTITY future operations of our company.
FINANCIAL ANALYSIS OF Plan, chart, forecast and establish budgets. 10%
U.S. ENTITY
ASSESS U.s. OPERATIONS Evaluate financial projections including capital expenditure 10%
projections, patient fees modules, P&L projections, cash
flow projections and balance sheet projections to detennine
feasibility of each phase of the operation; risk evaluation.
MANAGE AND SUPERVISE Supervise and direct personnel, hire, fire and make all 20%
U.S. ENTITY PERSONNEL necessary personnel decisions[.]
DEVELOP U.S. PERIPHERAL Oversee work of independent contractors, including 20%
BUSINESS negotiations with outside service providers such as
advertising agencies, web domain developers, accountants
and lawyers.
The petitioner also asserts in the letter dated May 6, 2005 that it has 8 employees. While this is consistent
with the organizational chart provided in response to the Request for Evidence, it conflicts with other
documentary evidence. For example, the organizational chart provided with the initial petition and the
employee roster applicable to the time period in which the petition was filed both identify 10 employees.
Therefore, the initial organizational chart will be used to adjudicate the appeal. 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). That being said, to the extent the second
organizational chart provides duty descriptions for employees identified in the initial petition, the AAO will
consider this evidence.
Additionally, the petitioner asserts that the beneficiary is relieved from perfonning the day-to-day functions
of the business by the office director, an independent contractor, and the other employees. While wage
reports were provided for the employees, the record does not reveal how much the office director is paid nor
does it reveal how much time he devotes to the petitioner's business. Also, the wage reports reveal that the
petitioner did not have any employees until the fourth quarter of 2004, approximately 3 months prior to the
filing of the current "new office" extension petition.
Finally, as indicated above, the petitioner provided an organizational chart for the United States operation.
The chart shows the beneficiary at the top of the organization supervising the office director, an independent
contractor. The office director, in tum, directly or indirectly supervises the subordinate employees including
a licensed physical therapist, a licensed acupuncturist, two massage therapists, an assistant to the physical
therapist, two receptionists, and a maintenance employee. The office director is described as overseeing the
business operation, implementing the beneficiary's policies, and supervising employees, while the remaining
employees are described as perfonning the tasks necessary to provide services.
On June 7, 2005, 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 a manager.
LIN 05 077 51484
Page 6
Specifically, counsel argues that the beneficiary's job duties, as well as his supervision of an office director
and a physical therapist, qualify him as a manager or executive:
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 2l4.2(1)(3)(vXc) 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(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 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 a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-<lay
basis. For example, the petitioner states that the beneficiary spends 60% of his time formulating strategies and
establishing goals, budgeting, and evaluating financial projections. The petitioner did not, however,
specifically define what strategies and goals will be formulated or provide details regarding what actions,
exactly, the beneficiary intends to take to set budgets or to evaluate financial projections. 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 (B.D.N.Y. 1989), afi'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).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees. First, the supervision of the office director, an
independent contractor, is not a qualifying managerial duty under the Act. The current version of the Act
clearly requires the supervision or control of employees. See 8 U.S.c. § 1101(aX44)(A)(ii). Independent
contractors are not employees. See 26 C.F.R. § 31.3121(d)-1(c)(2). Second, the supervision of the physical
therapist, while perhaps a professional employee, has not been established to be the "primary" function of the
beneficiary. The petitioner claims that only 20% of the beneficiary's time is spent supervising staff, which
presumably includes both the physical therapist and the other employees who have not been established to be
professional employees. In view of the fact that the beneficiary's remaining duties are so vaguely described
LIN 0507751484
Page 7
that it cannot be ascertained what he does or will do on a day-to-day basis, 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. 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 IOI(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 International, 19 I&N Dec. 593, 604 (Comm.
1988). A managerial or executive 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.
10i(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Also,
as indicated above, since the record fails to reveal the educational or skill levels necessary for entry into the
positions held by the subordinate employees, other than the physical therapist, it cannot be determined if they
rise to the level of professional employees.! Therefore, the record does not establish that the beneficiary will
act in a managerial capacity?
lIn 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. § 1101(aX32), 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 of Shin, 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, or even a master'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.
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. 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 defmed 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(lX3Xii). 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 manages an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions and
what proportion would be non-managerial. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties would be
managerial, nor can it deduce whether the beneficiary is primarily performing the duties of a function
manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
LIN 05077 51484
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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 tenn "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 defmition, 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." [d. As indicated above, while the petitioner may have provided a vague
job description which reiterates the regulations, the petitioner has failed to establish that the beneficiary, who
is primarily acting as a first-line supervisor, will be acting primarily in an executive capacity.
On appeal, counsel relies heavily on the presence of the office director and the other employees in asserting
that the petitioner employs a staff which relieves the beneficiary of the need to perform the day-to-day tasks
necessary to the business. While the presence of such a staff, either employees or independent contractors,
may be essential to establishing even the possibility that a beneficiary could be engaged primarily in
performing executive or managerial duties, the petitioner must still establish through a clear description of the
beneficiary's job duties that the beneficiary will be primarily engaged in performing these executive or
managerial duties. As indicated above, the petitioner has provided a vague, non-specific description of the
beneficiary's duties which do not establish that he will be primarily employed as a manager or an executive.
The presence of subordinate employees alone does not automatically establish that the beneficiary is engaged
primarily in performing managerial or executive duties.
Moreover, the office director and his alleged employment as an independent contractor must be addressed.
As correctly indicated by the director, the record does not reveal the salary of this individual, does not include
a copy of a consulting contract, and does not explain how much time the office director devotes to the
petitioner's business. Not only can the beneficiary's supervision of this independent contractor not be used as
a qualifying managerial duty, the petitioner has not sufficiently established that the office director provides
any services which would relieve the beneficiary of the need to perform non-qualifying duties, including first­
line supervisory duties. The director specifically requested wage and employment evidence for the
petitioner's staff, and the petitioner chose not to provide this evidence for the office director and has thus
failed to establish that he provides services to the petitioner. 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(bXI4). Going
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of
proofin these proceedings. Matter o/Treasure Craft o/California, 14 I&N Dec. 190.
Finally, on appeal, counsel repeatedly cites as authority guidance contained in the Foreign Affairs Manual
(FAM). It must be noted that the FAM is not binding upon CIS. See Avena v. INS, 989 F. Supp. 1 (D.D.C.
1997); Matter 0/ Bosuego, 17 I&N 125 (BIA 1979). The FAM provides guidance to employees of the
LIN 05077 51484
Page 9
Department of State in carrying out their official duties, such as the adjudication of visa applications abroad.
The PAM is not relevant to this proceeding.
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
or executive capacity as required by 8 C.F.R. § 214.2(1)(3).
Beyond the decision of the director, a related issue in this proceeding is whether the petitioner has provided
evidence sufficient to establish that the petitioner and' the foreign entity are qualifying organizations as
defined by 8 C.F.R. § 214.2(1Xl)(ii)(G).
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., one entity with
"branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section
101(a)(l5)(L) of the Act; 8 C.P.R. § 214.2(1). An affiliate means "[o]ne of two subsidiaries both of which are
owned and controlled by the same parent or individual." See 8 C.P.R. § 214.2(lXl)(ii)(L). In this case, the
petitioner asserts that it and the foreign entity are both 100% owned by Yun Suk Cho.
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289 (Comm.
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595.
In this matter, the petitioner has provided conflicting documentary evidence regarding the ownership and
control of the United States operation. While the petitioner has provided copies of organizational documents
evidencing the issuance of 100% of the petitioner's stock to Yun Suk Cho, the petitioner's 2004 IRS Form
1120 indicates in Schedule E that the beneficiary owns 100% of the petitioner's stock. The petitioner offers
no explanation for this serious 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). Therefore, in view of this inconsistency,
the petitioner has not established the ownership and control of the petitioner and has not established that it has
a qualifying relationship with the foreign entity. Por this additional reason, the petition may not be approved.
Beyond the decision of the director, a related issue in this proceeding is whether the petitioner has established
that it has been doing business as defined in 8 C.P.R. § 214.2(l)(1)(iiXH) for the previous year. 8 C.P.R. §
214.2(l)(l4)(ii)(B). In this matter, the record reveals that the petitioner did not have any employees until, at
the earliest, October 2004 even though the initial "new office" petition was approved on May 5, 2004. The
record also reveals that the petitioner had gross receipts of only $15,085.00 in 2004. Therefore, the petitioner
has not established that it engaged in the regular, systematic, and continuous provision of goods and/or
services during its first year in operation. For this additional reason, the petition may not be approved.
. .
LIN 05 077 51484
Page 10
The initial approval of an L-I 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 decjsion ...~ee
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd; .345 F3d '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.