dismissed L-1A Case: Product Distribution

U.S. Department of Homeland Security 
20 Mass. Ave., N.W , Rm. A3042 
Washington, DC 20529 
nv%X, *2 ;&;(&, &t$ , <2Jrg??j;! :$3m U. S. Citizenship 
and Immigration 
5 Services 
File: SRC 04 059 5 1281 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
! Robert P. Wiemann, Director 
ixdministrative Appeals Office 
&" 
SRC 04 059 5 128 1 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager as an 
L-1A nonimrnigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Florida that claims to be engaged in the ret istribution of infant and toddler products. The 
petitioner claims that it is the subsidiary o cated in Houghton Estate, South Africa. 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 for the petitioner disputes the director's 
decision and asserts that the petitioner presented evidence to establish that the beneficiary is not involved in 
the day-to-day operations of the petitioner's business, but rather performs only managerial and executive 
functions. 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 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. 5 214.2(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 
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education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening 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 management 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. 5 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 
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(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. 3 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. 
In the initial petition submitted on December 22, 2003, the petitioner described the beneficiary's job duties as 
follows: 
[The beneficiary] has been General Manager of [the petitioner] where he directs and manages 
all aspects of the company's business in the US, including seeking out and hiring 
professionals to assist in the establishment of the company's business. He directs all aspects 
of the finance, saleslmarketing, human resources, operations and administrative functions, as 
well as recruiting, hiring and training qualified staff. 
In a letter dated December 17, 2003, the petitioner provided the following additional information regarding 
the beneficiary's role during the petitioner's first year of operations: 
[The beneficiary] has been actively establishing the new U.S. company. He has secured a 
business location and opened a company bank account with Bank of America, and has hired a 
CPA to oversee all of the company's financial matters. In addition, he has hired an employee 
for the company. 
[The beneficiary] continues secure new business. At present, [the 
petitioner] is the distributor Italian company which sells infant-related 
items, such as strollers, to wholesalers in South Africa. [The 
petitioner's] other products include but are not limited to, the Artist Box, Gift Boxes, the 
Blackboard, and Ostrich eggs, which are distributed in the U.S. and South Africa. 
The petitioner indicated on Form 1-129 that it had two employees at the time of filing. The petitioner's Form 
941, Employer's Quarterly Tax Return for the third quarter of 2003 indicated the beneficiary as the only 
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employee. The petitioner also submitted copies of two check receipts, both for $500, purportedly paid to its 
"employee7' on November 4 and December 7, 2003. The name of the check issuer is obscured, but the one of 
the checks clearly shows the beneficiary's residential address. 
On January 2, 2004, the director requested additional evidence. Specifically, the director requested: (1) an 
explanation regarding the duties and educational backgrounds of the petitioner's other employees, if any; and 
(2) an explanation as to how the beneficiary will not engage in the day to day operations of the business, and 
whether he will be engaged in primarily managerial or executive duties. 
In a response dated January 21, 2004, former counsel for the petitioner provided the following "definitive 
statement describing the US employment of the beneficiary": 
The beneficiary's duties include, the overall management of the company, including overall 
cost control of the company's budget, supervision of staff, and management, client liason 
[sic] and overseeing the marketing effort with management, supervision of product 
importation and related matters. An equal amount of time is spent on all matters relating to 
the ongoing successful functioning of the company. 
Counsel for the petitioner also provided the following description of the petitioner's staffing: 
Contacts regular and prospective customers to solicit orders. 
to customers, based on customer's specific needs and interests. 
Answers questions about products, prices, durability and credit terms. Meets with customers 
to demonstrate and explain features of products, Prepares Lists of Prospective customers. 
Reviews sales records and current market information to determine value or sales potential of 
product. Estimates delivery Dates and arranges delivery schedules. Completes sales contracts 
or forms to record sales information. Instructs customers in use of products. Assists and 
advises retail dealers in use of sales promotion techniques. Investigates and resolves customer 
complaints. 
On February 5, 2004, the director denied the petition, concluding that the petitioner had failed to establish that 
the beneficiary will be primarily performing in a managerial or executive capacity. The director noted that the 
petitioner did not establish that the beneficiary was managing other professionals or managers, and further 
noted that the record indicated that the beneficiary would have to engage in the day to day business activities 
of the company, based on the current structure. 
On appeal, counsel for the petitioner asserts that sufficient evidence was submitted to establish that the 
beneficiary was "not dealing with sales, marketing, customer service, accounting, legal or computer 
functions" but rather held supervisory authority over employees who performed these functions while 
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performing other duties which are managerial or executive. Counsel submits copies of previously submitted 
documentation, along with new job descriptions for the beneficiary and the petitioner's "sales and marketing 
representative." Counsel claims that these job descriptions were included in former counsel's response to the 
director's request for evidence, but no copies of these documents can be found in the record of proceeding. 
The job description submitted for the beneficiary's subordinate is identical to that contained in former 
counsel's January 21, 2004 letter. The job description for the beneficiary includes the following duties: 
1 Directs, plans and implements policies and objectives of company. 
2 Directs activities of company to plan procedures, establish responsibilities and coordinate 
functions. 
3 Analyzes marketing potential for new store locations, sales statistics, and expenditure to 
formulate policy. 
4 Analyzes operations to evaluate performance of company and staff and to determine areas of cost 
reduction and program improvement. 
5 Confers with advisors to establish policies and formulate plans . . . . 
6 Reviews financial statements and sales and activity reports to ensure that company's objectives 
are achieved. 
7 Assigns or delegates responsibilities. 
8 Screens, selects, and hires new employees. 
9 Negotiates and approves contracts with suppliers and distributors. 
10 Direct foreign sales and service outlets of company. 
11 Directs product research and development. 
12 Direct conversion of products from USA to foreign standards. 
13 Represent company at trade association meetings to promote products. 
Counsel asserts "[wlhen taken as a whole, the initial petition and the petition for the extension show a 
consistent plan and pattern for the United States company . . . and as the plan has progressed from the time the 
petition was initially approved, nothing has changed that should have caused the extension to be denied." 
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. 
2142(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. Here, the petitioner claims that the beneficiary qualifies for classification as both a manager and 
or executive. A petitioner must establish that a beneficiary meets each of the four criteria set forth in the 
statutory definition for executive and the statutory definition for manager if it is representing the beneficiary 
is both an executive and a manager. At a minimum, the petitioner must demonstrate that the beneficiary's 
responsibilities will meet the requirements of one or the other capacity. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties include directing "all aspects of the finance, saleslmarketing, human resources, operations 
and administrative functions." However, the petitioner has not defined these functions or identified who 
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performs routine duties associated with these functions. As will be discussed below, the petitioner has 
provided minimal evidence that it employed its claimed "sales and marketing representative" at the time of 
filing, and no evidence that it employed additional employees or contract staff. The petitioner further states 
that the beneficiary "directs foreign sales and service outlets of company," "directs product research and 
development,""directs conversion of products from USA to foreign standards," and "supervises product 
importation," but the petitioner does not claim to have any employees engaged in product research and 
development, importing activities, or any foreign sales and service outlets. 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. Comrn. 1972). 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, 724F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d41 (2d. Cir. 1990). 
Collectively, the lack of staff to perform the functions that the beneficiary purportedly "directs" raises 
questions regarding the validity of the job descriptions provided. Either the beneficiary himself is performing 
most of the functions or he does not actually manage these functions as claimed by the petitioner. In either 
case, the AAO is left to question the validity of the petitioner's claim and the remainder of the beneficiary's 
claimed duties. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 
I&N Dec. 582,591 (BIA 1988). 
Although counsel has submitted a more detailed description of the beneficiary's duties on appeal, it states his 
duties in very broad terms, such as "directs, plans and implements policies and objectives," "directs activities 
of company to plan procedures, establish responsibilities and coordinate functions," and "establishes policies 
and formulates plans." Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives 
is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, at 1 108. 
In addition, the petitioner describes the beneficiary as negotiating contracts with suppliers and distributors, 
performing client liaison, and actively marketing the petitioner's product. Since the beneficiary actually 
negotiates contracts and markets the petitioner's products, he is performing tasks necessary to provide a 
service or product and these duties will not be considered managerial or executive in nature. An employee 
who primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology I?zternational, 19 I&N Dec. 
593,604 (Cornrn. 1988). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are '"primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner's description of the 
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial in nature, 
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and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. 
Cir. 1991). This failure of documentation is important because, as discussed above, several of the 
beneficiary's daily tasks, such as marketing and client liaison tasks, do not fall directly under traditional 
managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the 
beneficiary is primarily performing the duties of a manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. 
Supp. 2d 22,24 (D.D.C. 1999). 
When a new business is 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 activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. The regulation at 8 C.F.R. 3 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to support an executive 
or managerial position. In order to qualify for an extension of L-1 nonirnmigrant classification under a 
petition involving a new office, the petitioner must demonstrate through evidence, such as a description of 
both the beneficiary's duties and the staff of the organization, that the beneficiary will be employed in a 
primarily managerial or executive capacity. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 8 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(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 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. 
At the time of filing the petitioner, which claims to be engaged in the import, export and sale of infant and 
toddler products, employed the beneficiary the beneficiary as general manager. The petitioner has provided 
minimal evidence of two checks for $500 paid to its claimed "sales and marketing representative," made 
approximately one month apart in November and December 2003. Absent further evidence of wages paid to 
this employee, the AAO will assume that she was hired in October or November 2003 and that she was 
working part-time for a monthly salary of $500 at the time the petition was filed. Although counsel states the 
petitioner has contractual employees in the areas of accounting, computer and legal services, the petitioner has 
neither presented evidence to document the existence of these employees nor identified the services these 
individuals provide. Additionally, the petitioner has not explained how the services of the contracted 
employees obviate the need for the beneficiary to primarily conduct the petitioner's business, which is import 
and export, sales and marketing of products. Without documentary evidence to support its statements, the 
petitioner does not meet its burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornm. 1972). Based on a review of the petitioner's staffing levels at the time of filing, 
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the beneficiary supervised, at most, one part-time subordinate who relieved him from performing some 
routine sales and customer service duties. 
Therefore, it can be assumed, and has not been proven otherwise, that some of the company's sales and 
customer service duties and all of the other routine administrative and operational duties of the company, 
including market research, marketing, negotiations with suppliers and distributors, import and export 
functions, product research and development, must be performed by the beneficiary. The petitioner has failed 
to establish that these non-managerial and non-executive tasks do not constitute the majority of the 
beneficiary's time. See 8 C.F.R. 5 214,2(1)(3)(ii). Based on the record of proceeding, the beneficiary's job 
duties are principally composed of non-qualifying duties that preclude him from functioning in a primarily 
managerial or executive role. Again, an employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it is making progress towards the goals 
outlined in its business plan and intends to hire employees in the future. However, the petitioner must 
establish eligibility at the time of filing the nonirnrnigrant 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 Coup., 17 I&N Dec. 248 (Reg. Comm. 1978). As noted above, the regulation at 8 C.F.R. 
5 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no provision in CIS regulations that allows 
for an extension of this one-year period. If the business is not sufficiently operational after one year, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not reached the 
point that it can employ the beneficiary in a predominantly managerial or executive position. 
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. 5 214.2(1)(3). For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it is eligible for an extension of the 
initial one-year "new office" validity period. As previously noted, the regulation at 8 C.F.R. 5 214.2(1)(14)(ii) 
provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of this extension 
petition. Upon review, the petitioner has not satisfied two of the enumerated evidentiary requirements. The 
petitioner has not submitted evidence that the United States and foreign entities are still qualifying 
organizations as defined in 8 C.F.R. 5 214.2(l)(l)(ii)(G). The petitioner claims that it is a wholly-owned 
subsidiary of the foreign entity. In support of this assertion, the petitioner submitted its articles of 
incorporation, indicating that the company is authorized to issue 100 shares of common stock with a par value 
of $1.00. The petitioner also submitted a single stock certificate, number 5, indicating that 100 shares were 
issued to the foreign entity on March 2002. The petitioner's financial statement indicates that the petitioner's 
common stock is valued at $1,000, which suggests that the petitioner had issued more than 100 shares of 
stock as of the date of filing in December 2003. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
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inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Znc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. The minimal 
evidence submitted by the petitioner is insufficient to establish that the United States entity maintains a 
qualifying relationship with the foreign entity. For this additional reason, the appeal will be dismissed. 
In addition, the petitioner has not submitted evidence that the United States entity has been doing business for 
the previous year as defined in 8 C.F.R. 5 214,2(1)(l)(ii)(H) and as required by 8 C.F.R. 5 214,2(1)(14)(ii)(B). 
The petitioner submitted a financial statement, a few undated invoices, one invoice dated October 31, 2003, 
and a letter from a customer confirming an order made in November 12, 2003. Although the petitioner claims 
to be a distributor for a major manufacturer of infant products, the petitioner has submitted no evidence of its 
relationship with the manufacturer. In the instant case, there is no evidence that the petitioner was engaged in 
the regular, systematic and continuous provision of goods or services from January through October of 2003. 
For this additional reason the petition may not be approved. 
Finally, the record reflects that the U.S. entity did not secure a commercial lease until December 1, 2003, 
nearly eleven months after the approval of the original new office petition. The record further reflects that the 
office space licensed to the petitioner on this date is the same office used by the petitioner's previous 
immigration counsel, which raises questions regarding the validity of the agreement submitted. All company 
documents submitted dated prior to December 2003 bear the beneficiary's residential address. The regulation 
at 8 C.F.R. 3 214.2(1)(3)(v)(A) requires a petitioner that seeks to open a new office to submit evidence that it 
has acquired sufficient physical premises to commence doing business. In the present matter, either the 
petitioner did not comply with this requirement, misrepresented that they had complied, or the director 
committed gross error in approving the petition without evidence of the petitioner's physical premises. 
Regardless, the approval of the initial petition may be subject to revocation based on the evidence submitted 
with this petition. See 8 C.F.R. 5 214.2(1)(9)(iii). 
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 I?. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 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). 
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In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.