dismissed L-1A Case: Real Estate / Import-Export

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PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3042
Washington, DC 20529
u.s.Citizenship
"and Immigration
Services
File: SRC 05 036 50802 Office: TEXAS SERVICE CENTER Date: iW<2 8 2006
INRE: Petitioner: "
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l 5)(L) ofthe Immigration and
Nationality Act, 8 U.S.c. § 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. "
1obert P. Wiemann, Dire or
, AdministrativeAppeal fliee
, r~ , , ' ."
SRC OS 036 50802
Page 3
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
• I • •
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
. intracompany transferee pursuant to section 101(a)(1S)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(1S)(L). The petitioner is a corporation organized in the State of Florida that states that it
intends to invest in commercial real estate and engage in import and export activities. The petitioner claims
that it is the subsidiary of Chilingutila Secunda Amoes Properties (Proprietary) Ltd., located in Johannesburg,
South Africa." The petitioner seeks to open a new office in the United States and has requested that the
beneficiary be granted a one-year period of stay to serve as its president and chief executive officer for a one­
year period. The foreign entity noted that it had previously petitionedfor, and obtained approval for, an L-IA
new office petition on behalf of the instant beneficiary, which was valid from September 7, 2001 until
September 6, 2002 (SRC 01·is9 S~142).z
The director denied the petition concluding that the petitioner did not establish: (1) that the petitioner has
secured sufficient physical premises to house the new office; or (2) that the U.S. entity and the foreign entity
have a qualifying relationship. Specifically, the director noted that the petitioner failed to submit proof that
the foreign company had funded the United States company, observing that an apparently unrelated company
had provided the money identified as the petitioner's capitalization funds.
The petitioner subsequently concurrently filed a motion to reopen and an appeal. The director declined to
reopen the matter and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner
asserts that the petitioner submitted evidence establishing that it had sufficient physical premises to house the
new office, and contends that it is not necessary for the physical premises to be large. Counsel also argues that
the director did not cite to any regulation or case on point regarding how the new U.S. subsidiary company
should be capitalized or funded, and asserts that the wire transfer for $9,976 submitted by the petitioner is
sufficient to meet the company's initial expenses. With respect to the confusion regarding the company
names,counsel states that the foreign entity, Chilingutila Secunda Amoes Properties (Proprietary) Ltd., is also
known as "CSA Import & Export, Ltd." Counsel submits two briefs and additional evidence in support of the
appeal.
To establish eligibility for the Lvl 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
I Counsel for the petitioner initially filed a Form 1-129, Petition for a Nonimmigrant Worker, identifying the
foreign entity as the petitioner. The director subsequently requested a new Form 1-129 identifying the U.S.
company as the petitioner. Counsel submitted a revised Form 1-129 which the stated the U.S. entity's name
as "CSA Import & Exports, Ltd." It is noted that all other documentary evidence related to the U.S. entity
indicates that the correct company name is "CSA Import & Export, Inc." The director observed this
discrepancy in her decision.
2 The petitioner stated that the beneficiary was unable to relinquish his responsibilities with the foreign entity
and had thus not entered the United States to initialize operations during the validity of the previous "new
office" petition.
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" SRC 05 036 50802
Page 4
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 I-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as definedin paragraph (l)(I)(ii)(G) of this section.
(ii) Evidence thatthe alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description ofthe 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 .
The regulation at 8 C.F.R. § 214.2(l)(3)(v) also provides that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or be employed in a new office in the United
States, the petitioner shall submit evidence that: ""
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involves executive or managerial authority over the new
operation; and
(C) The intended United States operation, within one year of the approval of the
petitioner, will support an executive or managerial position as defined in paragraphs
(l)(1)(ii)(B) or (C) of this section, supported by information regarding:
(1) The proposed nature of the office describing the scope of the entity, its
organizational structure, and its financial goals; .
(2) The size of the United States investment ' and the financial ability of the
foreign entity to remunerate the beneficiary and to commence doing business
in the United States; and
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Page 5
(3) The organizational structure of the foreign entity.
The AAO will first address the issue of whether the petitioner has established a qualifying relationship
between the United States entity and the beneficiary's foreign employer. .
The pertinent regulations at 8 C .F.R. §, 214.2(l)(1)(ii) define the term "qualifying organization" and related
terms as follows:
(G) Qualifying organization means a United States or foreign firm, corporation, or other
legal entity which:
(l) Meets exactly one of the qualifying relationships specified in the definitions of
a parent, branch, affiliate or subsidiary specified in paragraph (1)(1)(ii) of this
section;
. .
(2) . Is or will be doing business (engaging in international trade is not required) as
an employer in the United States arid in at least one other country directly or
through a parent , branch, affiliate or subsidiary for the duration of the alien's
stay in the United States as an intracompany transferee ....
* * *
(1) Parent means a firm, corporation, or other legal entity which has subsidiaries.
(J) Branch means an operating division or office of the same organization housed in a
different location.
"
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
.directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly, half of the .entity and controls the entity; or owns , directly or '
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the entity, butin fact
controls the entity
The petition was filed on November 22, 2004. In an attachment to the Form 1-129, the petitioner stated that
the petitioner is wholly owned by the beneficiary's foreign employer, Chilingutila Segunda Amoes Properties
(Proprietary) Limited, also referred to as CSA Properties (Pty) Ltd. The petitioner stated that the beneficiary
owns 50 percent of the foreign entity, while five individuals, the beneficiary's spouse and four of his children,
each own 10 percent of the foreign entity. The foreign entity's memorandum and articles of association
confirmed the stated ownership of CSA Properties (Pty) Ltd. The petitioner also provided: (1) its articles of
incorporation, which indicate that the company is authorized to issue 500 shares of common stock with no par
value; (2) a copy of the petitioner's October 2004 bank statement showing receipt of a wire transfer in the
amount of $9,976 from "FEFA Enterprises Limited" on October 4 , 2004; and (3) the U.S. company's IRS
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Page 6
, .
Forms l120-A, U.S. Corporation .Short-Form Income Tax Return, for the 2001 through 2003 years, all of
which indicated at Part II, Line 2, that the beneficiary owns 100% ofthe company's stock.
The AAO notes that all documents submitted with the petition identify the name of the foreign entity, the
petitioner's claimed parent company, as Chilingutila Segunda Amoes 'Properties (Proprietary) Limited or
CSA Properties (Pty) Ltd.
On December 6, 2004, the director issued a request for additional evidence, instructing the petitioner to
submit, in part: (1) a copy of the bylaws of the United States company, all stock certificates and the stock
ledger; and (2) proof that the foreign company has funded the start up business, including copies of wire
transfers that clearly show the transfer of money from the foreign company to the United States as business
funds.
In a response dated December 30, 2004, the petitioner submitted its bylaws, stock ledger, and a copy of its
stock certificate number one, issuing 500 shares .of common stock to "CSA Import & Export Limited" on
August 20,2001. The petitioner resubmitted evidence that it received a wire transfer in the amount of $9,976
from "FEFA Enterprises Limited" in its U.S. ·bank account on October 4, 2004. Neither counsel nor the
petitioner provided any additional explanation regarding the submitted evidence.
Thedirector denied the petition on January 18, 2005, noting that there was no evidence that the claimed
parent company had transferred any funds to the U.S. business. The director also found that the petitioner had
not submitted evidence that "CSA Import & Export ,Ltd.'; exists; specifically noting that the U.S. company is
"CSA Import & Export, Inc ." and the claimed parent company is "Chilingutila Segunda Amoes Properties
Ltd."
Counsel submits a brief in support of the appeal, in which she states that the foreign parent company's "legal
name" is "Chilingutila Segunda Amoes Properties, Ltd .," but it is also known as "CSA Import & Exports,
LTD." Counsel claims that the'articles of incorporation were submitted and "are a part of this record to 'reflect
the names as 'Stated." With respect to the source of the.petitioner's funding, counsel states that the director
"did not point to any specific regulation or case on point regarding where and how the U.S. subsidiary should
be capitalized or funded." Counsel states that the documentation submitted establishes that the petitioner is
'wholly owned by the foreignentity.
In: a separate brief submitted in support of the petitioner's motion to reopen, counsel assertsthat "FEFA
Enterprises Ltda. is [an] offshore company which is managed by a Trust, namely Burgundy Consultants
Limited, which owns the foreign parent company along with other companies owned by the Beneficiary and
his relatives." The petitioner submits stock certificates for FEFA Enterprises, Ltd., a British Virgin Islands
company. The stock certificates and accompanying declarations of trust show that 25,000 shares of FEFA
. Enterprises are held in trust for the beneficiary by Island Management Services Limited, Isle of Man, and the
remaining 25,000 shares are divided equally between five of the beneficiary's family members, and held in
trust by Burgundy Consultants Limited, Isle of Man. The petitioner does not submit evidence to substantiate
,counsel's statement that Burgundy Consultants Limited "owns the foreign parent company along with other
companies owned by the beneficiary and his relatives." .
Counsel also states:.
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SRC 0503650802
Page?
Enclosed you will fmd the Articles of Association of CSA Import & Export LTD as well as
the U.S. company's shares which both show that the foreign parent company and the U.S.
firm have almost identical names and that a confusion has occurred with respect to the list of
theforeign parent company.... You will also note that all the documentation submitted by
the foreign parent comp~ny in support of this petition also has the same name as above.
The pet itioner submits the memorandum and articles of association for "CSA Import & Export (Proprietary)
Limited," a South African company established in April .1998, and authorized to issue 4000 shares. The
document shows that 100 ordinary shares were issued to an individual , on April 20, 1998.
There is no evidence that the company has other owners or any common ownership with the beneficiary's
foreign employer. Finally, the petitioner re-submits its stock certificate number one showing that 500 shares
were issued to "CSA Import & Export Limited ." . ..
On review, the petitioner has not established that a qualifying relationship exists between the U.S . and foreign
entities. . The regulations and case law confirm that the key factors for establishing a qualifying relationsh ip
between the U.S. and foreign entities are ownership and control. Matter ofSiemens Medical Systems.Jnc ., 19
I&N Dec. 362 (BIA 1986); Matter' ofHughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Church
Scientology International, 19 I&N Dec. 593 (BIA 1988)(In immigrant visa proceedings) . In the context ~r'this
visa petition, ownership refers to the direct and 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
.establishinent, management, and operations of an entity. Matter of Church Scientology International, supra at
595..
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 ofshares, 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. Inc. . supra. Without full disclosure of all
relevant documents, CIS is unable to determine the elements of ownership and control. .
In this matter, the actual ownership of the United States company cannot be determined based on the
inconsistent evidence in the record and the contradictory and unsupported assertions of counsel. The
petitioner, CSA Import & Export, Inc., is a Florida corporation thatclaims to be a wholly owned subsidiary of
Chilingutila SegundaAmoes Properties (Proprietary) Limited ; or CSA Properties, a South African company.
The petitioner's stock certificate indicates that the U.S. company's only shareholder is a different company,
"CSA Import and Export Limited." The petitioner's federal tax returns indicate that the beneficiary owns 100
percent of its stock. In response -to the director's request for evidence that the petitioner's parent company
provided the funding to capitalize the new U.S. subsidiary, the petitioner claimed that a different company,
F~FA Enterprises Ltd. , provided the funding. 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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SRC 05 036 50802
Page 8
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truthlies . Matter ofHo , 19 I&N Dec. 582,591-92 (BIA 1988).
The evidence submitted on appeal suggests that there is an affiliate relationship between FEFA Enterprises
· Ltd. and CSAProperties. However, since the petitioner issued 100 percent of its shares to "CSA Import and
Export Limited," the petitioner hasfailed to establish that CSA Properties is itsparent company as claimed in
the petition. In her appellate brief, counsel makes the unsupported assertion that CSA Import & Export Ltd .
and CSA are the same company and claims that the "articles of incorporation .... reflect the names as stated."
Contrary to counsel's statement, there is no evidence that these companies are the same entity, and no
reference to a foreign company named "CSA Import and Export Limited" in the documents submitted in
support of .the petition, other than on the petitioner's stock certificate . Similarly, there is no evidence to
support counsel's statement that a trust company, Burgundy Consultants Limited, owns the foreign parent
company along With other companies owned by the beneficiary and his relatives. The unsupported statements
of counsel on appeal Of in a motion are not evidence and ·thus are not entitled to any evidentiary weight. See
INS v. Phinpathya, 464 u.s. 183, 188-89 n.6 (1984) ; Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA
1980).
The petitioner also submits articles of association for another South African company, CSA Import & Export
(Pty) Limited (referred to by counsel as "CSA Import & Export Ltd.") which clearly confirms that it is not the
same .company as CSA Properties, and in fact does not even have a common shareholder. In the brief
submitted in support of the motion, counsel asserts that the foreign parent company and the U.S. entity have
"almost identical names " and asserts: "a confusion has occurred with respect to the name of the foreign
company." Counsel also makes the incorrect assertion that "all the documentation submitted by the foreign
· parent company in support of this petition also has the same name as above." Again, all the documentation
submitted by the foreign parent company, including financial statements, payroll records, copies of contract,
lease agreements and contracts, reflected the name of the foreign entity as Chilingutila Segunda Amoes
Properties (Proprietary) Limited,or CSA Properties . Without documentary evidence to support the claim, the
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel
do not constitute evidence. Matter ofObaigbena, 19 I&N pee. 533, 534.(BIA 1988); Matter ofLaureano, .19
I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Based on all of the above inconsistencies , the AAO cannot determine the actual ownership and control of the
U.S. entity and cannot conclude that it enjoys a qualifying relationship with the beneficiary's foreign
employer. A few errors or minor discrepancies are not reason to question' the credibility of an alien or an
employer seeking immigration benefits. See, e .g., Spencer Enterprises Inc . v. U.S., 345 F.3d 683, 694 (9th
Cir., 2003). However, anytime a petition includes numerouserrors and discrepancies, and the petitioner fails '
·to resolve those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will
raise serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the
petitioner's proofmayundennine the reliability and sufficiency of the remaining evidence offered in support
of the visa petition. Matter ofHo, 19 I&N Dec. at 591 . In this case , the discrepancies and errors catalogued
above lead the AAO to conclude that the evidence of the petitioner's eligibility js not credible. For this
reason, the appeal will be dismissed.
The AAO will next consider the issue of whether the petitioner has secured sufficient physical premises to
house its new office, as required by 8 C.F.R. § 214.2(1)(3)(v)(A).
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Page 9
In support of the petition filed on October 14, 2003, the petitioner submitted a one-page sublease agreement
made between counsel and the petitioning company. The lease was to be valid for a six-month .
commencing on October 15, 2004 for the premises located at
, 33145, counsel's office address. The sublease was signed on October 18,2004. According to the terms of
the agreement, the petitioning company was required to pay counsel $2,250 on October 1, 2004 and $750 on
January 15,2005 , February 15,2004 and March. 15, 2004~ The -agreement bears the illegible signature of the
"landlord," counsel's signature as "tenant" and the beneficiary's signature as "subtenant," and refers to the
original lease agreement entered into by the landlord and tenant on August 26,2003.
In his December 6, 2004 request for evidence, the director requested: a 90PY of the original lease agreement
between counsel and her landlord and evidence that she has permission to sublet space; photographs of the
office inside and out 'and a diagram showing square footage and the location of the petitioner's offices; and
evidence that the petitioning entity has paid .the down pa~ent on the lease as specified in the contract.
In a response received on January 4, 2005, counsel provided a copy of her lease agreement dated August 26,
2003, and re-submitted the sublease, noting that it was "signed by the owners permitting said assignment or
sublease." Counsel submitted a floor plan for her office suite and indicated that the petitioner would rent a
200 square foot office, share reception services, and would be able to schedule use of a conference room as
needed. In response to the director's request for evidence that the petitioner had paid the firstthree months
rent on October 1, 2004 as stipulated in the sublease agreement, counsel submitted her August 2004 bank
statement. Counsel highlighted an incoming wire transfer from "Fefa Enterprises Ltd ." in the amount of
$8,273.75 on August 10,2004, and stated that this amount included the $2,250 rent deposit and "attorney fees
and costs."
The director denied the petition, concluding that the petitioner failed to establish that it had secured sufficient
physical premises for the business. Specifically, the director stated; "The evidence shows that the beneficiary
has simply rented a piece of the attorney's office. There is no evidence that this space would be adequate for
the.establishment of an import export company with the amount of corporate structure required to sU,stain a
purely managerial or executive position."
On appeal"counsel for the petitioner states that the premises subleased by -the petitioner is sufficient to house
the U .S. company's initial operations . Counsei contends that the petitioner provided a comprehensive
response to the director's request for evidence and that 'the director denied the petition simply on the basis of
"assumptions regarding office sp~ce .... " Counsel further asserts that "it is not necessary for the premises to
be extremely large and current regulations do not defme and have made no indications as to what an adequate
.size may be." Finally, counsel states that the petitioner intends to invest .over one million dollars in
commercial space for the U .S. subsidiary, but is only able to do this if and when the beneficiary is approved
for an L-IA visa.
Counsel's argument is not persuasive. The petitioner has not secured sufficient physical premises to house the
new office. Although the petitioner submitted a lease agreement with the initial petition, the petitioner 's plan
to occupy a single office in counsel's office suite is not consistent With its claim that the company will operate
as an import ,and export company With twenty employees. Furthermore, the director specifically requested
evidence that counsel had obtained permission to sublet the space from her landlord and the petitioner merely
resubmitted the sublease agreement in response. However, according to the terms of the main lease
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SRC 05 036 50802
Page 10
agreement, counsel would have needed to submit to the landlord a written request for consent accompanied by
financial statements and tax returns for the proposed subtenant, a written statement from the subtenant,
information regarding the number of employees to be located at the premises, and an assumption of liability
by the sub-tenant, Accordingly, it is reasonable to assume that other documentation related to the sub-lease
agreement should have been available for submission in response to the director's specific request. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
In addition, the AAO notes that petitioner did not provide evidence that it actually paid the first three months
rent of $2,250 on October 1, 2004 as stipulated by the sublease agreement. In r~sponseto the director's
request for this evidence, counsel submitted her August 2004 bank statement showing that she received a wire
transfer of $8,273.75 from FEFA Enterprises Ltd. on August 10, 2004. Counsel did not, however, explain
why the claimed related foreign entity would have paid rent on behalf of the petitioner two months prior to the
date the lease agreement was signed or otherwise provide evidence that the monies transferred included
payment for rent.
Counsel's statement on appeal that the petitioner intends to invest over one million .dollars in .commercial
space is not supported by any evidence in the record . The unsupported statements of counsel on appeal or in a
motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya,464·U.S.
183, 188-89 n.6 (1984); Matter. of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Furthermore, the
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts.
Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Based on the foregoing discussion, the petitioner has not established that it had secured sufficient premises to
house the new office as required byS C.F.R. § 214.2(l)(3)(v)(A). · For this reason, the appeal will be
dismissed.
Beyond the decision of the director; the record does not contain sufficient evidence to establish that the
beneficiary would be employed by the U.S. entity ina primarily managerial or executive capacity .within one
year. The petitioner failed to provide evidence regarding the proposed nature of the office, the scope of the
entity, its organizational structure, and its financial goals; evidence showing the size of the United States
investment, -the financial ability of the foreign entity to remunerate the beneficiary and to commence doing
business in the United States; and depicting the organizational structure of the foreign entity, as required by 8
C.F.R. § 214.2(1)(3)(v). The petitioner has also failed to provide a detailed description of the beneficiary's
proposed duties as required by the regulations. 8 C.F.R. § 214.2(l)(3)(ii). For example the petitioner stated
that the beneficiary would supervise approximately twenty personnel including an import/export manager,
sales associates, delivery personnel, property managers andsupport staff, but did not provide a hiring plan or
other evidence of how many employees would be hired during the first year of operations or what duties they
would perform. The petitioner indicated that the beneficiary would be responsible for "day to day
discretionary decisions involving investments, hiring and firing of personnel, decision making for the
companies, sales contracts, marketing programs, advertising, personnel, payroll, and other executive duties."
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
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duties themselves will reveal the true nature of the employment. Fedin Bros . Co., Ltd. v. Sava, 724 F. Supp .
1103, 1108 (E.D.N.Y '. 1989), ajfd, 905 F.2d 41 (2d. C ir. 1990). The lack of evidence in the record regarding. .
the nature of the U.S. entity' sbusiness, its proposed organizational structure, the amount of the investment in
the company, and the beneficiary's actual duties precludes a finding that he would be employed in a primarily
managerial or executive capacity, or that the U.S. entity would support a qualifying managerial .or executive
position within one year. For this additional reason, the ' petitio~ cannot be approved.
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), ajfd . 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 the decision. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 V.S.c. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.