dismissed L-1A Case: Retail

v U.S. Department of HomelandSecurity
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File:
SRC 04 039 52196
;
Office: TEXAS SERVICE CENTER Date: DEC 04 Zool
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
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 ~C~ef
Administrative Appeals Office .
www.uscis.gov
SRC 04 039 52196
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa . The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this .nonimmigrant visa petition seeking to extend the employment of its president as an L­
lA .nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L) ; The petitioner is a corporation organized under the laws
of the State of Texas and allegedly operates a convenience store. I The beneficiary was granted a one-year
period of stay to open a new office in the United States, and the petitioner now seeks to extend the
beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal , counsel to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of an'executive or manager.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. .Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary 's application for admission into the United
. States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C .F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defmed in paragraph (1)(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 organizat ion within the three years preceding the filing of
'n should be noted that , according to Texas state corporate records, the petitioner's corporate status in Texas is
not in good standing . Therefore, as the State of Texas has forfeited the petitioner's corporate privileges, the
company' can no longer be considered a legal entity in the United States .' Therefore, this would call into
question the continued eligibility of the petitioner for the benefit sought if the appeal were not being
dismissed for the reasons set forth herein.
SRC 04 039 52196
.Page 3
. the petition .
L
(iv) E vidence 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 hirn/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. § 2l4.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be extended by filing a new Form 1-129 , accompanied by the following:
(A)
(B)
(C)
(D)
(E)
Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(l)(ii)(G) of this section ;
Evidence that the United States entity has been doing business as defined in
paragraph (l)(1)(ii)(H) of this section for the previous year;
A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition ;
A statement describing 1he staffing of the new operation , including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
.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. § I 101(a)(44)(A), defmes the tenn "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 essentialfunction within theorganization , 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,
SRC 04 03952196
Page 4 .
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 10I(a)(44)(B) of the ACt, 8 U.S.C. § 1l0I(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 orily general supervision or direction from higher level executives, the board
of directors , or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial
duties under section 10I(a)(44)(A) of the Act, or primarily executive duties under section lOl(a)(44)(B) of
the Act. A petitioner may notc1aim that a beneficiary will be employed as a hybrid "executive/manager" and
rely on partial sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary
as both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set
forth in the statutory definition for executive and the statutory definition for manager.
The petitioner describes the beneficiary's job duties in an attachment to the Form 1-129 as follows:
The Beneficiary will continue to be employed as the President of the Petitioner, and he will
be responsible for setting and establishing the company's goals and objectives ; reviewing
locations for the establishment of retail/wholesale outlets; reviewing and analyzing market
conditions; directing and managing the company ; reviewing and approving budgets;
reviewing and approving inventory orders prepared by subordinate staff; reviewing and
approving marketing strategy; establishing sales and marketing goals and overseeing the
implementation of such goals ; supervising and controlling work of subordinate managers and
supervisors; hire and fire managers and supervisors ; and reviewing financial records prepared
. by professional staff. .
In the performance of his duties, the Beneficiary will receive minimum supervision from the
Board of Directors , and he will exercise wide discretion and latitude.
SRC 04 039 52196
Page 5
On January 14, 2004, the director requested additional evidence. The director requested, inter alia, wage
reports listing the names and social security numbers of all employees, a work schedule for the petitioner's
convenience store, and tax returns.
In response, counsel submitted a letter dated April 2, 2004 indicating that the petitioner commenced doing
business in October 2003, less than two months prior to the filing of the instant "new office" extension
petition. Counsel also submitted the requested wage reports. The reports indicate that the beneficiary was the
petitioner's only employee until October 2003 when it apparently hired four additional employees. These four
additional employees are described as being a "store operations manager," an "assistant manager/cashier," and
two cashiers. The duties of the "store operations manager" are described in a letter dated April 2, 2004 as
follows:
[L]ocating vendors; supervising subordinate employees who prepare inventory reports;
resolving issues relating to defective or unacceptable goods with vendors; supervising
purchase activities; maintain/order inventory; preparing employee work schedule; prepare
sales report; preparing budget and expense reports; prepare marketing campaign; maintain
records of underground petroleum storage tanks in accordance with state and federal
environmental laws.
Likewise, the duties of the "assistant manager/cashier" are described as follows:
[R]econcile all accounts and prepare daily sales report; assist in preparing employee work
schedule; preparing and maintaining inventory report; maintain/order inventory; assist in
preparing budget and expense reports; maintain records of underground petroleum storage
tanks in accordance with state and federal environmental laws; supervise subordinate
employees; and operate cash register/credit card machine.
The petitioner also submitted a work schedule for the "Caldwood Food Mart." The schedule indicates that the
store operations manager, the assistant manager/cashier, and the two cashiers all work at different times
during the week. For example, the store operations manager works from noon until 5:00 p.m., Monday
through Friday, and again from 8:00 p.m. until 10:00 p.m. on the weekends. No other employee is scheduled
to work during these times. While the beneficiary's proposed work hours are not listed on the schedule, the
record as a whole implies that the beneficiary supervises the four scheduled employees.
On June 1, 2004, the director denied the petition. The director concluded that the petitioner failed to establish
that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, counsel asserts that the beneficiary's duties are primarily those of an executive or a manager.
Upon review, counsel's assertions are not persuasive.
Title 8 C.F.R. § 2l4.2(l)(3)(v)(C) allows the "new office" operation one year. within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
SRC 04 03952196
Page 6
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. Future hiring
or business expansion plans may not be considered. A visa petition may. not be approved based on
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts.
See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec.
45,49 (Comm. 1971). In the instant matter, the United States operation has not reached the point that it can
employ the beneficiary in a predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the
position entail executive responsibilities, while other duties are managerial. As explained above,a petitioner
may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a
day-to-day basis. For example, the petitioner states that the beneficiary will establish "the company's goals
and objectives," review "locations for the establishment of retail/wholesale outlets," analyze market
conditions, and approve marketing strategy. However, the petitioner does not specifically define the goals,
. objectives, market conditions, or marketing strategies that are the object of the beneficiary's stated job duties.
Furthermore, general managerial-sounding duties such as "directing and managing the company" are not
probative of the beneficiary performing qualifying duties. The fact that the petitioner has given the
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated
job duties does not establish that the beneficiary will actually perform managerial or executive duties.
Specifics are clearly an important indication of whether a beneficiary's duties will be primarily executive or
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.V. 1989), aff'd, 905 F.2d 41 (2d. Cir.
1990). Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm.1972).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As asserted in the record, the beneficiary will directly supervise a "store operations manager," an "assistant
manager/cashier," and two cashiers. However, the petitioner has failed to establish that either of the
"managers" is truly a supervisory or managerial employee. Not only are these employees not clearly
described as having supervisory or managerial responsibilities over subordinate employees, the petitioner's
work schedule indicates that both "managers" will each staff the convenience store alone. Therefore, it
appears that all of the employees will take turns operating the store during different times, which is a task
SRC 04 039 52196
Page 7
necessary to provide the petitioner's service, and, thus, the record is not persuasive in establishing that any of
the subordinate employees will truly be a supervisory or managerial employee. An employee will not be
considered to be a supervisor simply because of a job title or because he or she supervises daily work
activities and assignments. Rather, the employee must be shown to possess some significant degree of control
or authority over the employment of subordinates. See generally Browne v. Signal Mountain Nursery, L.P.,
286F.Supp.2d 904, 907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16
(B.D. Tex. Jan. 11, 2007». Artificial tiers of subordinate employees and inflated job titles are not probative
and will not establish that an organization is sufficiently complex to support an executive or managerial
position. The petitioner has not established that the reasonable needs of the United States operation compel
the employment of a managerial or executive employee to oversee one or more subordinate supervisors. To
the contrary, it is more likely than not that both the beneficiary and his staff will all primarily perform non­
qualifying tasks. See generally Family, Inc. v. Us. Citizenship and Immigration Services, 469 F.3d 1313 (9 th
Cir.2006).
In view of the above, it appears that the beneficiary will be primarily a first-line supervisor . of non­
professional workers, the provider of actual services, or a combination of both. An employee who
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). A managerial employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the
supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills required to
perform the. duties of the subordinate positions, the petitioner has not established that the beneficiary will
manage professional employees.' Therefore, the petitioner has not established that the beneficiary will be
employed primarily in a managerialcapacity.' .
2Inevaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he termprofession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a. realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
3While the petitioner has not argued that the beneficiary will manage an essential function of the organization,
the record nevertheless would not support this position even if taken. The term "function manager" applies
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is
primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
I
SRC 04 03952196
Page 8
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, abeneficiary must
have the ability to "direct the management" and "establish the goals. and policies" of that, organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." .Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations
are substantial enough to support a manager." Family, Inc. v. u.s. Citizenship and Immigration Services, 469
F.3d at 1316 (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin
Bros. Co. v.Sava, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp.
2d 25, 29 (D.D.C. 2003). Furthermore, 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). Finally, the reasonable needs of the petitioner will not supersede
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 2l4.2(1)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained
above, the record establishes that the beneficiary will primarily be a first-line supervisor of non-professional
employees and will perform non-qualifying operational or administrative tasks. Absent a clear and credible
breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determin:e what
proportion of his duties will be managerial, nor can it deduce whether the beneficiary will primarily perform
the duties of a function manager. See lKEA US, Inc. v. u.s.Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C.
1999).
SRC 04 039 52196
Page 9
the requirement that the beneficiary be "primarily" employed in a managerial or executive capacity as
required by the statute. Seesections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44).
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or
executive duties, and the petition may not be approved for that reason. 4
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. §§
214.2(l)(3)(iii), (iv), and (v)(B).
The foreign employer described the beneficiary's duties abroad in an attachment to the Form 1-129as follows:
As the General Manager, the Beneficiary was responsible for locating vendors; negotiating
with such vendors; supervising subordinate employees who prepare marketing and catering
strategy; reviewing and analyzing data relating to the market conditions, sales reports, and
catering orders; establishing and implementing policies to manage and achieve marketing
goals; reviewing and approving budgets prepared by controller and chartered accountants;
and directing management of the company.
The Beneficiary received minimum supervision or control in the performance of his duties,
and he supervised at least eight subordinate employees.
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a
managerial or executive capacity. The petitioner failed to specifically describe the beneficiary's job duties
abroad. Specifics are clearly an important indication of whether a beneficiary's duties were primarily
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. Furthermore, despite
the vagueness of the job description, it appears that the beneficiary was primarily engaged in performing non-
41 tis noted that counsel to the petitioner cited the unpublished opinion in Matter ofIrish Dairy Board, A28­
845-42 (AAO Nov. 16, 1989), in support of his contention that the beneficiary is primarily employed as an
executive or manager. In that decision, the AAO recognized that the sole employee of the petitioner could be
employed primarily as a manager or executive provided he or she is primarily performing executive or
managerial duties. However, counsel's reliance on this decision is misplaced. First, counsel has furnished no
evidence to establish that the facts of the instant petition are analogous to those in the unpublished decision.
Second, while 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees
in the administration of the Act, unpublished decisions are not similarly binding. Third, as explained above,
the petitioner has not established that the beneficiary will primarily be employed in an executive or
managerial capacity. This is paramount to the analysis, and a beneficiary may not be classified as a manager
or an executive if he or she will not primarily perform managerial or executive duties regardless of the
number of people employed by the petitioner. Therefore, as the petitioner has not established this essential
element, the decision in Matter ofIrish Dairy Board would be irrelevant even if it were binding or analogous.
SRC 04 039 52196
Page 10
qualifying tasks necessary to the production of a product or the provision of a service, e.g., locating and
negotiating with vendors. Finally, the petitioner failed to describe the duties of the beneficiary's purported
subordinates abroad. Absent detailed descriptions of the duties of both the beneficiary and his purported
subordinates, it is impossible for CIS to discern whether the beneficiary was "primarily" engaged in
performing managerial or executive duties abroad or whether he managed managerial, supervisory, or
professional employees. See sections 10I(a)(44)(A) and (B) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604. -,
Accordingly, the petitioner has not established that the beneficiary was employed abroad in a primarily
managerial or executive capacity for one continuous year in the three years preceding the filing of the
petition, and the petition may not be,approved for this reason.
Beyond the decision of the director, the petitioner has failed to establish that the petitioner has been "doing
business" for the previous year as required by 8 C.F.R. § 214.2(l)(14)(ii)(B). "Doing business" is defined in
part as "the regular, systematic and continuous provision of goods and/or services." 8 C.F.R. §
214.2(l)(l)(ii)(H). As indicated above, counsel submitted a letter dated April 2, 2004 in which he states that
the petitioner commenced doing business in October 2003, less than two months prior to the filing of the
instant "new office" extension petition. The record is devoid of evidence that,prior to October 2003, the
petitioner was engaged in any business activity even though the initial "new office" petition was approved
from November 23,2002 until November 23,2003. As the "new office" extension criteria clearly require the
United States entity be "doing business" for the previous year, the instant petition may not be approved for
this additional reason. '
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon
completion of the temporary assignment in the United States. 8 C.F.R. § 214.2(l)(3)(vii).
In this matter, the petitioner claims that both it and the foreign employer are 100% owned and controlled by
the beneficiary. As a purported owner of the petitioner, the petitioner is obligated to establish that the
beneficiary's services will be used for a temporary period and that he will be transferred to an assignment
abroad upon completion of the assignment. Id. However, the record is devoid of any evidence establishing
that the beneficiary's services will be used temporarily. 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. 158, 165 (Comm. 1998)(citingMatter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190).
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary
assignment in the United States, the petition may not be approved for this additional reason.
The previous approval of an L-IA petition does not preclude CIS from denying an extension 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). Despite any number of previously approved petitions, CIS does not have any
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent
SRC 04 039 52196
Page 11
petition. See section 291 of the Act, 8 U.S.C. § 1361.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2(01), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.