dismissed L-1A Case: Retail

U~S.' Departmtmtof Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S~ Citizenship
and Immigration
Services
1,17,.-" ,
FILE: WAC 05 260 51468 Office: CALIFORNIA SERVICE CENTER Date: .NAY 0] '2007
rNRE: Petition~r: .
Beneficiary:
"
PETITION:," Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L)ofthe Immigration and
Nationalityi\ct,.8 U.S.c. § 1l01(a)(15)(L)
ON BEHALF OF ~ETITIONER:
"
INSTRUCTIONS: '
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office
~hllt originally decided your case. Any further inquiry must be made to that office.
~~, Ro~eff"P:-Wlematln" ChIef
Administrative Appeals Office
','
www;uscis.gov.
WAC 05 260 51468
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-lA
nonimmigrant intracompany transferee pursuant to section lOl(a)(15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The petitioner, a corporation organized in the State of California,
claims to be the subsidiary of located in Hyderabad, India. l The petitioner claims
to be engaged in the retail sale of Indian-made garments and accessories.
The director denied the petition concluding that the petitioner did not establish that (1) a qualifying
relationship existed between the petitioner and the foreign entity; or (2) the beneficiary will be employed in
the United States in a primarily managerial or executive capacity.
Counsel for the petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner
alleges that the director's decision was erroneous and constituted an abuse of discretion. In support of this
contention, counsel submits a detailed brief and additional evidence.
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) provides 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 defined in paragraph (1)(1)(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.
I It should be noted that, according to California state corporate records,the petitioner's corporate status in
California has been suspended. Therefore, as the petitioner has lost all rights and powers for failure to meet
statutory filing requirements, the company cari no longer be considered a legal entity in the United States.
Therefore, even if the issues raised on appeal were overcome, given the petitioner's current corporate status in
the United States, it appears the petition could not be approved for this add~tional reason alone.
WAC 05 260 51468
Page 3
(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 whic~
the alien performed abroad.
The first issue in the present matter is whether the petitioner and the foreign organization are qualified
organizations as defined by 8 C.F.R. § 2l4.2(1)(1)(ii)(G). The regulation defines the term "qualifying
organization" as a United States or foreign firm, corporation, or other legal entity which:
(1) 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 and 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; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.
Additionally, the regulation at 8 C.F.R. § 2l4.2(1)(1)(ii) provides:
(I) "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, but in fact controls the entity.
(L) "Affiliate" means
(1) One of two subsidiaries both of which are owned and controlled by the same parent
or individual, or
(2) One of two legal entities owned and controlled by the same group of individuals,
each individual owning and controlling approximately the same share or proportion
of each entity, or
WAC 0526051468
Page 4
(3) In the case of a partnership that is organized in the United States to provide
accounting services along with managerial and/or consulting services and that
markets its accounting services under an internationally recognized name under an
agreement with a worldwide coordinating organization that is oWned and controlled
by the member accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting services shall be
considered to be an affiliate of the United States partnership if it markets its
accounting services under _the same internationally. recognized name under the
agreement with the worldwide coordinating organization of which the United States
partnership is also a member.
In this case, the petitioner makes two simultaneous claims regarding the nature of the relationship between the
entities. Initially, the petitioner claims that the U.S. office is a branch of the foreign entity. In the saine
document, however, the petitioner claims that the foreign entity owns 100% of the U.S. entity, thereby
suggesting a subsidiary relationship. As addressed by the director, the AAQ will also review the evidence for
eligibility under both relationships.
In a letter of support dated September 26,2005, the petitioner indicates that the U.S. corporation was acquired
in lieu of monetary consideration. Specifically, the U.S. entity owed the foreign entity $15,298, and in
exchange forforgiveness of the debt, ownership of the U.S. entity passed to the foreign entity. The issue on
appeal is whether the' necessary elements of a qualifying relationship have been demonstrated between the
two parties.
As discussed by the director, the initial claim that the U.S. office is a branch of the foreign entity is invalid.
Specifically, the director correctly noted in the denial that, if the petitioner submits evidence to show that it is
incorporated in the United States, then that entity will not qualify as "an ... office of the same organization
housed in a different location," since that corporation is a distinct legal entity separate and apart from the
foreign organization. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG '1958); Matter of Aphrodite
Investments Limited, 17 I&N Dec, 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc.
Comm. 1980). In this matter, definitive evidence has been submitted to show that the U.S. entity was
incorporated in California in 1993. If the claimed branch is incorporated in the United States, Citizenship and
Immigration Services (CIS) must examine the ownership and control of that corporation to determine whether
it qualifies as a subsidiary or affiliate of the overseas employer. As a result,. therefore, the issue to be
determined is whether the U.S. entity is a wholly-owned subsidiary of the foreign entity, as claimed pythe
. petitioner.
The petitioner c'laimed prior to adjudication and again on appeal thatthe petitioner's corporate income tax
returns for the year 2000 are acceptable evidence of the transfer of ownership of the U.S. entity to the foreign
entity. Specifically, the petitioner asserts that the presence of the $15)98 figure under "other assets" on Part
, III of its 1120A for the tax year-2000 is sufficient evidence of the foreign entity's acquisition of the U.S.
entity. The AAO disagrees.
WAC 0526051468
PageS
The regulation and case law confinn that ownership and control are the factors that must be examined,in
detennining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens 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
ofChurch Scientology International, 19 I&N Dec. at 595.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates, the corporate stock
certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder
meetings must be examined to detennine the total number of shares issued, the exact number issued to the
shareholder, and the, subsequent percentage ownership and its effect on corporate control to detennine
whether a stockholder maintains ownership and control of a corporate entity. 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, Inc., supra. Without full disclosure of all relevant documents, CIS is
unable to determine the elements of ownership and control.
In this matter, the petitioner has submitted insufficient corporate documentation to corroborate its claIms.
. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Additionally, the AAO notes that
under the "other assets" reference where the figure of $15,298 appears, the petitioner refers to "Schedule 1"
for an explanation as to the meaning of other assets. Interestingly, however, "Schedule 1" was not submitted
for the record.
Furthennore, although not discussed by the director in the denial, the AAO notes that the record contains a
document etititled "Minutes" of the U.S. entity, dated July 16, 2000. This document, which is unsigned,
provides that' stated he has transferred his Shares of [the petitioner] for the value received as per
the buy and sell agreement." This document is of little relevance since it is unsigned, but it does suggest that
a buy and sell agreement may in fact have been executed and record~d, which would serVe as evidence of the
transfer of ownership. .However, no copies of this document were submitted, nor has any evidence of the
fonnal transfer of Mr. s shares to the foreign entity been provided.' As stated above, going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
, these proceedings. Matter of Soffici, 22 I&N Dec. at'165. Additionally, despite counsel's strong contentions
on appeal that the 2000 tax return evidences the transfer of ownership, the assertions of counsel will not
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. '
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. I (BIA 1983);
Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)..
WAC 0526051468
Page 6
Based on the lack of evidence of the current ownership of the U.S. entity, the crucial elements of ownership
and control cannot be determined, and thus a qualifying relatipnship has not been established. For this reason,
the petition may not be approved.
The second issue in this 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. § 1l01(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) .supervises and controls the work of other supervisory, professional,or managerial
employees, or manages an essential function within the organization, or a department
. or subdivision of the organization; .
(iii) if another employee or other employees are directly supervised, has the authority to'
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv). exercises discretion over the day to-day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § llOl(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 componerit 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 a letter dated September 26, 2005, the petitioner explained that i't currently operated two store
•••••ilaand that it would be opening a third, 1 Gram Gold, in the coming weeks. In addition, a statement
" WAC 05 26051468
Page 7
'", l •
providing an overview of other, employees' in the company indicated that the btmeticiary oversaw two
,employees; namely: ,Prem Guragain, "manager" 0_Kids, who until August of 2005 worked as a sales.
r~presentative for ' , "manager" ,of_ Finally, the petitioner claimed that the
beneficiary supervised a certified public accountant, who worked' for the petitioner as' an, independent
contractor' on an as-needed basis. ,
Quarterly tax returns for the'most recent quarter ending June 2005 confmned the, employinentof _
as well a third employee,_ identified as a part-time sales
representative. With regard to the benefi~iary's role in the ~etitione~ provided ~ breakdown
of the percentage of tinie the beneficiary devoted to all tasks and indicated that 10% of her time would,be
devoted to directing'the activities of the organization; 30% of her time would be 4evoted to analyzing
operations to evaluate performance of the company and staff to determine areas of cost reduction and program
involvement; 10% of her time we,mld be devoted to conferring with the manager to establish policies and
formulate plans; 30%' of her time would be devoted to reviewing fmancial statements and sales and activity
'. . . . ,. . .
reports; 10% of, her time would be devoted to assigning or delegating responsibilities to subordinates as
neces,sary;and '10% of her time would be devoted to developing the business mission, objectives, goal,S and
policies of the petitioner;
On November 4,2005, the director requested additional evidence pertaining to the nature of the beneficiary'S
position in the U.S. business. The request specifically asked the petitioner to submit a list of all employees
under the beneficiary's supervision as well asa mor~ detailed description of the benefici~ry's duties, including
the percentage of time devoted to eachduty.
The petitioner submitted a response dated November 10,2005. The petitioner provided an overview of a
typical' workweek for the beneficiary, broken down into daily and hourly intervals, and provided a list of ,
additional responsibilities attributed to the beneficiary. For example, the petitioner claimed thatin addition to
the previously-submitted overview, the beneficiary 'also assumed responsibility for "holding' together the
entire infrastructure of the entire c~mpany,""recruitment, hiring[,] traimng,evaluation and compensation of
employees" and "overs~eingtheentire operation of the various locations." ,
On January 16,'2006, the director denied the petition; The director found that the evidence in the record was
"'insufficient to establish that' the beneficiary would primarily be employed in a managerial or executive
, capacity. The director concluded that the documentary evidence submitted did ,not establish that the
beneficiary would function at, it senior level withiti the organization or that, the beneficiary had sufficient
subordinate staff to relie~e her from performing non-qualifying duties. '
, ' .', . ','. '
On appeal, .counsel for the petitioner attempts to 'refute the director's basis for the denial' by ,providing
'documentation verifying the current staffing of the organization, and restates the beneficiary's duties and
chtims that the petitioner' ~as in fact satisfied the" regulatory requirements. Additional documentation
regarding the current statusofthe petitioner is submitted as well as a final assertion by counsei that, as prior
petitions were approved based on the same set of evidence, the instant petition should likewise be approved.
) The AAO, however, disagrees with counsel's assertions.
. '.,
•
WAC OS 260 51468
Page 8
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The definitions of executive and
managerial capacity have two main parts. First, the petitioner must show that the beneficiary performs the
high level responsibilities that are specified in the definitions. Second, the petitioner must prove that the
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her
time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991).
r
The description of duties provided, both in the initial letter of support and in response to the request for
evidence, simply adopt many of the key phrases used in the regulatory definitions of both managerial and
executive capacity. General statements such as "overseeing the entire operation" and "directing, planning and
implementing policies" do little to clarify the exact nature of the beneficiary's duties. Conclusory assertions
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language of the
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. 1103, 1108 (E.D.N.Y. 1989), afJ'd, 90S F. 2d 41 (2d. Cir. 1990); Aryr Associates, Inc. v. Meissner,
1997 WL 188942 at *5 (S.D.N.Y.). 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 oil a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros.
Co., Ltd. v. Sava, 724F. Supp. at 1108.
The petitioner, however, attempted to answer this question by providing a daily schedule for the beneficiary.
From the breakdown of a typical week, however, it appears that the beneficiary's typical workday is Monday
to Friday from 10:00 a.m. until 4:30 p.m. During the hours of 12:00 p.m. and 2:00 p.m., the petitioner stated
that the beneficiary is typically out to lunch. Each day appeared to be broken up the same way, i.e., from
10:00 a.m. to 12:00 p.m. the beneficiary would look over accounting tasks; from 12:00 p.m. until 2:00 p.m.
she would be out to lunch but would make necessary phone calls or visit clients during this period as required;
and from 2:00 p.m. to 4:30 p.m. she would typically take care of pending matters and return phone calls.
Based on this overview, it appears that the beneficiary works at most 32.5 hours per week, including the time
between 12:00 p.m. and 2:00 p.m. when she takes her lunch break. As the petitioner indicated on the Form
1-129 that the beneficiary was to be employed on a full-time basis, this leaves largely unaccounted between
seven and a half and seventeen and a half hours of the beneficiary's proposed duties. Regardless, the
petitioner conti~ues to claim that she is working in a qualifying capacity based primarily on the fact that she
has a subordiriate staff of professionals to relieve her from non-qualifying duties.2 .
2 It should be noted that the description of duties provided in the initial petition and in response to the request
for evidence 'paraphrased the regulatory definitions of both managerial and executive capacity, and the
petitioner failed to specify whether the beneficiary was primarily a manager or an executive. The evidence
and description of duties discussed above infers that the beneficiary is employed in the United States in a
managerial capacity. On appeal, however, counsel makes!.a specific claim for the first time that the
beneficiary is employed primarily in an executive capacity by virtue of her title as president of the petitioner.
This claim follows the director's denial based largely on a finding that ·the beneficiary did not supervise a
WAC 05 260 51468
Page 9
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. A company's size alone, without taking into account the reasonable. needs of the
organization, may not be the determining factor in approving a visa for a multinational manager or executive.
See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for CIS to consider the
size of the petitioning company in conjunction with other relevant factors, such as a company's small
personnel size, the absence of employees who would perform the non-managerial or non-executive operations
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See,
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially
relevant when CIS notes d~screpancies in the record and fails to believe that the facts asserted are true. Id.
In this matter, the evidence in the record confirms that at the time of filing, the peti~ed the
beneficiary, a "manager" for_a former sales representative turned "manager" for ~nd one
part-time sales representative. The petitioner also claimed that the beneficiary oversaw an accountant who
worked as an independent contractor on an as-needed basis. There are some unexplained inconsistencies in
this scenario. Essentially, the petitioner claims to operate two retail clothing stores, and will shortly open a
third. It has one designated manager for each store, and one part-time sales representative whose hours and
place of work was not specified. Further, as determined above, the beneficiary as an
alleged full-time manager or executive, works at most" 32.5 hours per week. Based on this figure, it is
questionable whether her subordinate employees work more hours than she does, and it particularly raises
questions with regard to the nature of the part-time sales representative's hours, considering the quarterly tax
return shows that he makes significantly less than all other employees.
In the instant matter, it is unclear how the beneficiary can engage only in managerial or executive tasks as
.claimed, particularly when the position descriptions of her two subordinate employees also include only
managerial duties, thereby leaving no one except one part-time sales associate to actually interact with
customers, ring sales, and take care of housekeeping and administrative duties. The petitioner claims that the
beneficiary oversees a subordinate staff of managerial and/or professional employees, and is thus qualified for
an extension of the petition. Based on the evidence presented, however, the employment situation presented
before the AAO is not credible.
A critical analysis of the nature of the petitioner's business undermines counsel's assertion that the subordinate
employees relieve the beneficiary from performing non-qualifying duties. Rather, it appears from the record
that the oilly individual performing any non-managerial or non-executive function would be the part-time
subordinate staff of professional, managerial or supervisory employees. Upon review of the record, the
director correctly evaluated the beneficiary's stated duties for compliance under both regulatory definitions
based upon the petitioner's failure to specify in which capacity the beneficiary was employed. On appeal, the
AAO is likewise obligated to provide a similar review of the stated duties for compliance under both
definitions, despite counsel's specific claim ofthe beneficiary's executive capacity.
WAC 0526051468
Page 10
. sales representative, and this is only inferred from his job title and significantly lower wages. As the two
store "managers" include no sales, marketing, or administrative duties in their position descriptions outlined
in the September 26, 2005 letter, it can only be assumed, and has not been proven otherwise, that the
beneficiary and these two persons are together performing all sales, marketing, and customer-service related
tasks. At the time of filing, it is confirmed by records provided that the beneficiary, the two store managers,
and a part-time sales associate were the only employees. There is no reasonable explanation for how two
clothing stores could operate profitably (as claimed by the petitioner) without all employees, including the
beneficiary, engaging in non-managerial functions.
Furthermore, the fact that a third store is scheduled to open shortly only makes this inconsistent situation
more questionable. Based on the record of proceeding, and absent evidence to the c0r:ttrary,the beneficiary's
job duties appear to be principally composed of non-qualifying duties that preclude her from functioning in a
primarily managerial or executive role. 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 ofChurch Scientology International, 19 I&N Dec. 593, 604 (Cornm. 1988). 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 ofHo, 19 I&N Dec. 582,
591 (BIA 1988).
Moreover, the petitioner must establish eligibility at the time of filing the nonimm~grant 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). Although a third store is
scheduled to open soon, according to the petitioner, and new staff members will be hired, the fact remains.that
at the time of filing, the petitioner did not have sufficient subordinate staff to relieve her from primarily
performing non-qualifying duties.
Counsel for the petitioner noted that CIS approved other petitions that had been previously filed on behalf of
the beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the other
nonimmigrant petitions. However, if the previous nonimmigrant petitions were approved based on the same
unsupported and contradictory assertions that are contained in the current record, the approval would
constitute material and gross error on the p'art of the director. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597
(Comm. 1988). It would be absurd to suggest that CIS· or any agency must treat acknowledged errors as
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485
U.S. 1008 (1988).
. Furthermore, the AAO's authority over the service' centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001). The prior approvals do not preclude CIS from denying an extension
WAC 05 26051468
Page 11
of the original visa based on a reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch,
99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004).
Based on the evidence presented, the petitioner has not reached the point that it can employ the beneficiary in
a predominantly managerial or executive position. For this reason, the petition may not be approved.
Beyond the decision of the director, the petitioner indicates that the beneficiary is the sole owner of both
companies. Even if this claim was substantiated, it remains to be determined that the beneficiary's services
are for a temporary period. The regulation at 8 C.F.R. § 214.2(1)(3)(vii) states that if the beneficiary is an
owner or major stockholder of the company, the petition must be accompanied by evidence that the
beneficiary's services are to be used for a temporary period and that the beneficiary will be transferred to an
assignment abroad upon the completion of the temporary services in the United States. In the absence of
persuasive evidence, it cannot be concluded that the beneficiary's services are to be used temporarily or that
she will be transferred to an assignment abroad upon completion of her services in the United States.
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 State's, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajJ'd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on ade novo basis).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of t~e AAO's enumerated grounds. See
Spencer Enterprises, Inc. v, United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001),ajJ'd. 345 F.3d 683
(9th Cir. 2003). J .
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has
~~~.' . .
ORDER: The appeal is dismissed.