dismissed L-1A Case: Ship Management

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rrn. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: EAC 07 080 51061 Office: VERMONT SERVICE CENTER Date: FEB 2 8 2008
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.
~40b~ie~~n:, 'Chief
Administrative Appeals Office
www.uscis.gov
EAC 07 080 51061
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of vice
president for marketing to open a new office in the United States as an L-1A nonimmigrant intracompany
transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(15)(L). The petitioner, a business entity organized under the laws of the Philippines, is allegedly in
the business of ship management and servicing. The petitioner claims to have a qualifying relationship with a
Florida corporation, Lighthouse Ship Services, Inc., which intends to employ the beneficiary in the United
States.
The director denied the petition concluding that the petitioner failed to establish that the United States
operation will support an executive or managerial position within one year. Specifically, the director
determined that the petitioner failed to establish that the petitioning organization has the financial ability to
remunerate the beneficiary and to commence doing business in the United States.
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 asserts that the petitioner has established
that the organization has the financial ability to both remunerate the beneficiary and to commence doing
business in the United States and, thus, will support an executive or managerial position within one year.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
EAC 07 080 51061
Page 3
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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, 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 involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the
approval of the petition, will support an executive or managerial
position as defined in paragraphs (l)(l )(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
(3) The organizational structure of the foreign entity.
The primary issue in this matter is whether the intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
EAC 07 080 51061
Page 4
(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. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner briefly described the proposed United States operation in a letter dated January 5, 2007 as
follows:
[The United States operation] is a Florida based corporation that will be doing business in
three (3) [s]tates, [n]amely Florida, Texas and in the near future Alaska.
The company is in the business of sourcing out placement for employment in the Shipping
Industry, Cruise Industry and Ship Management. As [sic] well as servicing the needs of these
personnel in various seaports in the United States.
[The United States operation] is a shareholder of Crew Connection Corporation owning fifty­
one percent (51%) of that company base[d] in Tampa, Florida but with operations in several
states. Our participation in this Corporation is limited to the business in Galveston, Texas.
* * *
In our office in Lighthouse Point, Flo .d teed at least two (2) employees and
the first one is the beneficiary [sic] . He will be the President of the
Company and will supervise all of our projects in the United States. Likewise in the head
EAC 07 080 51061
Page 5
office we will start accepting contracts to manage and man Ocean going cargo and ships as
well as yachts, we are on [sic] the process of transferring the management from our office in
Manila, [the] Philippines to Lighthouse Point, Florida as so many of our clients are based in
the U.S.
* * *
[The beneficiary] as stated will hold the position of Vice-President for Marketing and Crew
Welfare; she will take ove who will be transferred to Galveston, Texas, as that
said port needs the management of I
The petitioner also submitted the United States operation's bank account information indicating that, as of
January 16, 2007, approximately two weeks before the petition was filed, the United States operation had an
account balance of $55,340.15.
Furthermore, the petitioner submitted a proposed organizational chart for the United States operation. The
chart shows the beneficiary reporting to the president, ~he chart also shows the beneficiary
supervising the Galveston, Texas business, the Florida business (which will hire two employees), and a future
business to be formed in Alaska. However, since the petitioner asserted in the letter dated January 5, 2007
that will manage the Galveston operation, it is unclear what role the beneficiary will actually
have, if any, in the management of this office. Also, as the record is devoid of any specific evidence
addressing the planned expansion in Alaska, this purported duty of the beneficiary appears purely speculative
and not likely to develop during the first year. Therefore, it appears that, after the first year in operation, the
beneficiary will more likely than not be operating the Florida location and supervising its two planned
employees. The petitioner also failed to describe the proposed duties of these two projected employees.
Finally, the petitioner submitted a document titled "Job Description Administrative Officer - [the
beneficiary]" in which the petitioner describes the beneficiary's proposed duties in the United States
l
as
follows:
Basic Function:
1. Monitors and oversees Administrative and HRD operations[.]
2. Acts as Administrative and HRD Manager for officer staff.
lIt is noted that the petitioner claims in the Form 1-129 and the organizational chart that the beneficiary will be
employed as the vice president for marketing. It is also noted that the job description submitted for the
beneficiary's proposed duties in the United States is identical to the job description submitted for the
beneficiary's position abroad, i.e., head of the administrative division. It is unknown whether this was
intentional or an oversight by counsel. Regardless, in the absence of evidence to the contrary, the AAO will
consider this job description to pertain to both her current position in the Philippines and her prospective
position in the United States.
EAC 07 080 51061
Page 6
Duties and Responsibilities:
1. Ensure smooth and efficient day to day operations of Administration and HR
Departments operations[.]
2. When necessary issues directives concerning office decorum.
3. Meets with the office staff and accepts/acts on suggestions for improvement of
overall operations.
4. Oversees the proper implementation of the company's rules and regulations.
5. Maintain and updates employees['] 201 files.
6. In charge of overall cleanliness and maintenance of office facilities.
7. Responsible for recruitment, screening and placement manpower required for all job
openings in the organization.
8. Conducts orientation to new employees on personnel policies.
9. Ensures that all staff have attended the in house Quality Awareness Seminars and
other required training.
10. Responsible for all quality records and documents under his/her custody including its
proper safekeeping and control do as readily identifiable accessible and retrievable.
11. Perform other tasks that may be assigned from time to time.
On March 2, 2007, the director requested additional evidence. The director requested, inter alia, a copy of
the United States operation's. business plan and evidence addressing the United States operation's financial
status.
In response, the petitioner submitted a document titled "Business Plan." The plan describes the objective of
the United States operation as follows:
The objective was to identify potential markets in the U.S. such as cruise lines, cargo ships
and yacht owners for crewing, ship management and provision supplies. This plan seeks to
generate a significant increase in company sales and profits from the delivery of quantified
and quality Crew, e.g., Deck and Engine, Food Beverages Staff, Hotel and Housekeeping
Personnel, including ship supplies.
While the plan outlines the services provided by the petitioner abroad, the plan fails to specifically address
what function the United States operation will have other than to market the petitioner's staffing services to
United States customers. The plan fails to list any current or potential customers of the United States
operation, although existing customers of the foreign petitioner are identified. Also, the plan fails to
specifically describe the United States operation's marketing and sales strategies and provides no evidence or
objective data supporting its revenue, income, and expense projections. While the plan projects $146,601.76
in operating expenses in 2007 and claims that it will eventually hire 14 employees, the plan's expense
projections for 2007 fail to account for the $6,000 monthly obligation described in the Memorandum of
Agreement with Crew Connection Corporation dated September 27, 2006. Finally, it is not clear whether the
plan is stated in its entirety in Filipino pesos or in United States dollars or whether the projections apply to the
United States operation, the petitioner, or both.
EAC 07 080 51061
Page 7
On May 15, 2007, the director denied the petition concluding that the petition failed to establish that the
United States operation will support an executive or managerial position within one year. Specifically, the
director determined that the petitioner failed to establish that the petitioning organization has the financial
ability to remunerate the beneficiary and to commence doing business in the United States.
On appeal, counsel asserts that the petitioner has established that the organization has the financial ability to
both remunerate the beneficiary and to commence doing business in the United States and, thus, will support
an executive or managerial position within one year.
Upon review, the petitioner's assertions are not persuasive.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
As contemplated by the regulations, a comprehensive business plan should contain, at a mInImUm, a
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job "descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefor. Most importantly, the business plan must be credible.
Id.
EAC 07 080 51061
Page 8
For several reasons, the petitioner in this matter has failed to establish that the United States operation will
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there
would be an actual need for a manager or executive who will primarily perform qualifying duties. The
petitioner has failed to sufficiently describe both the beneficiary's and her subordinates' proposed duties after
the petitioner's first year in operation; has failed to establish that a sufficient investment has been made in the
United States operation which will permit the remuneration of the beneficiary and the commencement of
doing business in the United States; and has failed to sufficiently describe the nature, scope, organizational
structure, and financial goals of the new office. 8 C.F.R. § 214.2(l)(3)(v)(C).
First, the petitioner has failed to establish that the beneficiary will perform primarily "managerial" or
"executive" duties after the petitioner's first year in operation. When examining the proposed executive or
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the proposed
job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe
the duties that will be performed by the beneficiary and indicate whether such duties will be either in an
executive or managerial capacity. Id.
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary will do on a day-to-day basis after the United States operation's first
year in operation.
2
For example, the petitioner states that the beneficiary will oversee the "implementation of
the company's rules and regulations." However, the petitioner did not specifically define these rules and
regulations. Also, broad managerial-sounding duties like "ensure smooth and efficient day to day operations
of Administration and HR Departments operations" are not probative of the beneficiary actually performing
qualifying duties. The fact that the petitioner has given the beneficiary a managerial title and has prepared a
vague job description which includes inflated duties does not establish that the beneficiary will actually
perform managerial duties after the first year of operations. 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.Y. 1989), a!f'd, 905 F.2d 41 (2d. Cir. 1990). Once again, 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.
Likewise, many of the duties ascribed to the beneficiary appear to be non-qualifying administrative or
operational tasks. For example, the petitioner asserts that the beneficiary will issue "directives concerning
2As indicated above, the job description submitted for the beneficiary's proposed duties in the United States is
identical to the job description submitted for the beneficiary's position abroad, i.e., head of the administrative
. division. It is unknown whether this was intentional or an oversight by counsel. Regardless, in the absence of
evidence to the contrary, the AAO will consider this job description to pertain to her prospective position in
the United States. In the event this job description does not pertain to the beneficiary's prospective position in
the United States, then the record would be devoid of evidence addressing the beneficiary's proposed duties.
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).
EAC 07 080 51061
Page 9
office decorum;" maintain and update employee files and records; be in charge of office cleanliness and
maintenance; be responsible for recruitment, screening, and placement of manpower; conduct employee
orientations; and ensure that staff attend training sessions. However, it has not been established that such
duties are managerial or executive in nature. To the contrary, it appears that these duties are non-qualifying
administrative or operational tasks necessary for the provision of a service. Furthermore, the record is not
persuasive in establishing that the beneficiary will be, after the first year, relieved of the need to perform these
non-qualifying tasks by a subordinate staff. As explained above, the petitioner failed to specifically describe
the duties of the two proposed subordinate employees in Florida or to explain how, exactly, these prospective
employees will relieve the beneficiary from performing non-qualifying tasks. As the petitioner fails to
explain what tasks the beneficiary and her subordinate staff will perform after the petitioner's first year in
operation or to explain how much time the beneficiary will devote to performing non-qualifying tasks, it
cannot be confirmed that she will be "primarily" employed as a manager or executive. 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;
see also Matter ofChurch Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
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.
The petitioner has failed to specifically describe the duties of the proposed subordinate employees.
Therefore, it cannot be concluded that the beneficiary will supervise and control other supervisory,
managerial, or professional employees, and it appears that the beneficiary will primarily be, at most, a first­
line supervisor of non-professional employees. A managerial or executive employee must have authority
over day-to-day operations beyond the level normally vested in a first-line supervisor. See 101(a)(44) of the
Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Therefore, the petitioner has
not established that the beneficiary will be employed primarily in a managerial or executive capacity after the
petitioner's first year in operation.
Second, as correctly noted by the director, the petitioner failed to establish that the United States operation
will support an executive or managerial position within one year because it failed to establish that the
petitioning organization is able to remunerate the beneficiary and to commence doing business in the United
States. 8 C.F.R. § 214.2(l)(3)(v)(C)(2). In this matter, the record indicates that the petitioner currently has
approximately $55,340.15 in a bank account. The petitioner plans to pay the beneficiary $30,000.00 per year,
plus pay for her housing and health insurance. The United States operation is also obligated under a
Memorandum of Agreement to make monthly $6,000.00 payments to Crew Connection Corporation until
April 2007. Furthermore, the United States operation's lease agreement obligates it to pay $371.00 per month
in rent. The record is devoid of objective evidence addressing the United States operation's ability to generate
revenue by providing services during its first year in operation.
EAC 07 080 51061
Page 10
On appeal, counsel asserts that CIS should look only to the United States operation and the investment it had
received from abroad, as well as its ongoing business activities, in considering whether sufficient funds are
available to remunerate the beneficiary and to commence doing business in the United States.
3
In view of counsel's assertion, the AAO agrees with the director that the petitioning organization appears
unable to remunerate the beneficiary and commence doing business in the United States in a manner which
will result in the enterprise succeeding and rapidly expanding as it moves away from the developmental stage
to full operations, where there would be an actual need for a manager or executive who will primarily perform
qualifying duties. As indicated above, the record is devoid of credible evidence establishing that the United
States operation will begin generating a significant amount of revenue after it commences doing business.
Given this lack of evidence, it is not credible that a business having only $55,340.15 will be able to support
the beneficiary's salary, benefits package, and housing costs, pay its rent and the obligation to Crew
Connection Corporation, and fund the start up of the enterprise in a manner which will result in the
beneficiary performing qualifying duties in one year. To the contrary, it is more likely than not that, as
described above, the beneficiary, after the first year in operation, will be primarily performing non-qualifying
tasks along with, perhaps, one or two other employees. Accordingly, the petitioner has failed to establish that
the United States operation will support an executive or managerial position within one year for this
additional reason.
Third, the petitioner failed to establish that the United States operation will support an executive or
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope,
organizational structure, and financial goals of the new office. 8 C.F.R. § 214.2(l)(3)(v)(C)(l). As explained
above, the petitioner has submitted a vague business plan which fails to credibly describe the proposed United
States organization. Not only are the plan's revenue, expense, and income projections not supported by
objective evidence or data, it is not clear whether the plan is stated in Filipino pesos or in United States
dollars or whether the projections apply to the United States operation, the petitioner, or both. The plan fails
to list any current or potential customers of the United States operation or to specifically describe the United
States operation's marketing and sales strategies. Overall, the record fails to specifically describe the nature,
scope, or financial goals of the United States operation. Furthermore, as noted above, the organizational chart
for the proposed United States organization fails to identify the duties of the two projected Florida employees.
Absent a detailed, credible description of the petitioner's proposed United States business operation
addressing the petitioner's proposed marketing plan, customers, staffing, and income/expense projections, it is
3It is noted that, on appeal, counsel submits additional evidence addressing the United States entity's business
activities and financial achievements occurring after the filing of the petition. However, such evidence is
irrelevant to the instant petition. 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). A
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to CIS
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Therefore, evidence
pertaining to business activities or investments received after the filing of the instant petition may not be
considered in this matter. If the petitioner believes that such evidence will make it eligible for the benefit
sought, it must file a new petition with CIS.
EAC 07 08051061
Page 11
impossible to determine whether the proposed enterprise will succeed and rapidly expand as it moves away
from the developmental stage to full operations, where there would be an actual need for a manager or
executive who will primarily perform qualifying duties. Accordingly, the petitioner has failed to establish that
the United States operation will support an executive or managerial position within one year for this
additional reason.
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or
managerial position within one year as required by 8 C.F.R. § 214.2(1)(3)(v)(C), and the petition may not be
approved for the above reasons.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been
employed in a primarily managerial or executive capacity with the foreign entity for one year within the
preceding three years. 8 C.F.R. § 214.2(l)(3)(v)(B). As explained above, the petitioner submitted a job
description for the beneficiary's foreign position, the head of the administrative division, which is identical to
her proposed position in the United States. As this job description is reproduced above, it will not be repeated
here. For the same reasons given above, this vague and nonspecific description of the beneficiary's duties
fails to demonstrate what the beneficiary did on a day-to-day basis abroad. Once again, 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, ajJ'd, 905 F.2d 41. Furthermore, as explained above, many of the duties
ascribed to the beneficiary appear to have been non-qualifying administrative or operational tasks, and, as the
petitioner fails to establish how much time the beneficiary devoted to performing such tasks, the petitioner
failed to establish that the beneficiary "primarily" performed qualifying duties. Finally, while the petitioner
submitted a vague organizational chart, the petitioner nevertheless failed to describe the duties of the
beneficiary's purported subordinate employee abroad. Absent detailed descriptions of the duties of both the
beneficiary and her purported subordinate, it is impossible for CIS to conclude that the beneficiary was
"primarily" engaged in performing managerial or executive duties abroad. See sections 101(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 has been employed in a primarily
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition
as required by 8 C.F.R. § 214.2(l)(3)(v)(B), and the petition may not be approved for this reason.
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with
the foreign entity.
The regulation at 8 C.F.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by
"[e]vidence that the petitioner and the organization which employed or will employ the alien are qualifying
organizations." Title 8 C.F.R. § 214.2(i)(1)(ii)(G) defines a "qualifying organization" as a firm, corporation,
or other legal entity which "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" and "is or will be doing
business." "Doing business" is defined as "the regular, systematic, and continuous provision of goods and/or
EAC 07 08051061
Page 12
services by a qualifying organization and does not include the mere presence of an agent or office of the
qualifying organization in the United States and abroad."
In this matter, the record is not persuasive in establishing that the United States operation will be "doing
business" in the United States as defined by the regulations. Rather, it appears that the United States
operation will be a "mere presence of an agent or office" in the United States. As explained by the petitioner,
the objective of the United States operation is to "identify potential new markets" for the petitioner's staffing
operation which staffs ships with crew members from the Philippines. It does not appear that the United
States operation will perform any function or provide any service other than to generate additional business
for the foreign petitioner which will ultimately provide the service to the customer. As this sales agent
activity does not constitute the provision of a good or service under the regulations, the petitioner has failed to
establish that the United States operation will be "doing business" and, thus, has failed to establish that the
United States operation is a qualifying organization.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity,
and the petition may not be approved for this additional reason.
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), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.