dismissed L-1A Case: Software Development

identifying dEl!:": deleted to
preventcleany unwarnsnted
invasionofpersonalprivacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Mass . Ave., N.W., Rm. A3000
Washington , DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 0613350613 Office: CALIFORNIA SERVICE CENTER Date: NOV 01 2001
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)(l5)(L)
IN BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
Rob~~f
Administrative Appeals Office
www.uscis.gov
WAC 0613350613
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 is a California corporation allegedly engaged in the software development business. The
petitioner seeks to employ the beneficiary as its office manager as an L-IA nonimmigrant intracompany
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(lS)(L). The director denied the petition concluding that the petitioner failed to establish (1) that it
has secured sufficient physical premises to house the new office; or (2) that the petitioner and the foreign
employer have a qualifying relationship.
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, the petitioner offers additional evidence regarding
its business operations.
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 lrnowledge 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 lrnowledgecapacity.
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(l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
lrnowledgecapacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
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.
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Page 3
In addition, the regulation at 8 C.F.R. § 214.2(1)(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) Sufficientphysical 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
defmed in paragraphs (1)(1)(ii)(B) or (C) of this section, supported by
informationregarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizationalstructure, and its fmancial goals;
(2) The size of the United States investment and the fmancial
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.
A threshold issue in this matter is whether the petitioner is a "new office" for purposes of 8 C.F.R. §
214.2(1)(3).
The regulation at 8 C.F.R. § 214.2(1)(1)(ii)(F)defines a "new office" as:
[A]n organization which has been doing business in the United States through a parent,
branch, affiliate, or subsidiary for less then one year.
Moreover, the regulation at 8 C.F.R. § 214.2(1)(1)(ii)(H)defines "doing business" as:
[T]he regular, systematic, and continuous provision of goods and/or 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 petitioner asserts that it was established on August 2, 2004, that it has three employees, and
that it generated over $290,000.00 in revenue from April 2005 to March 2006. The petitioner also indicated
in the L Classification Supplement to Form 1-129 that the beneficiary is not coming to the United States to
open a new office. Finally, the petitioner submitted an income statement, 2004 tax return, and other
WAC 0613350613
Page 4
documents indicating that the petitioner commenced doing business in 2004. The instant petition was filed on
April 21, 2006.
In view of the above, the record as a whole indicates that the petitioner had been doing business for over one
year when the petition was filed, and thus it does not meet the definition of a "new office." Therefore, to the
extent the director treated the petitioner as a "new office," the decision is withdrawn. However, as the
maintenance of a place of business is nevertheless relevant to whether the petitioner has established that it is
"doing business" as defmed by the regulations, the director's consideration of this criteria shall not be
disturbed.
Therefore, the primary issue in this matter is whether the petitioner has established that it and the foreign
employer are qualifying organizations.
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:
Evidence that the petitioner and the organization which employed or will employ the alien are
qualifying organizations as defined in paragraph (1)(I)(ii)(G) of this section.
Title 8 C.F.R. § 2l4.2(l)(l)(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 (l)(l)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or indirectly, more than
half of the entity and controls the entity." 8 C.F.R. § 214.2(1)(l)(ii)(K). An "affiliate" is defined in part as "[o]ne
of two subsidiaries both of which are owned and controlled by the same parent or individua1." 8 C.F.R. §
214.2(l)(1)(ii)(L)(l). A ''joint venture" is generally defined as a "business undertaking by two or more persons
engaged in a single defined project." Black's Law Dictionary 843 (7th Ed., West 1999). Finally, "doing
business" is defined in part as "the regular, systematic, and continuous provision of goods and/or services."
In this matter, the petitioner, a corporation, asserts in the Form 1-129 that it is a "joint venture" of the foreign
employer and that the "[c]ompany stock ownership and managerial control of each company" is 40%. The
petitioner also submitted a translation of the foreign employer's articles of association which indicates that the
foreign employer , is 80% owned b~Finally, the
petitioner submitted a letter dated March 7, 2006 in which the petitioner asserts that the foreign employer has "the
same ownership as the California based Movell Software, Inc."
On May 11, 2006, the director requested additional evidence. The director requested, inter alia, additional
evidence establishing ownership and control of the foreign employer; evidence addressing the acquisition of the
petitioner's stock; copies of corporate minutes, copies of the petitioner's articles of incorporation; copies of the
petitioner's stock certificates and stock ledger; and a detailed list of the owners ofthe petitioner.
In response, the petitioner submitted a list of owners of the foreign employer indicating that_
owns a 26.7% interest. The petitioner also submitted a resolution dated December 20, 2~
owns a 60% interest in the petitioner. Finally, the petitioner submitted a copy of its 2004
WAC 06 133 50613
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Form 1120 which indicates that no individual or corporation owned 50% or more of the corporation's voting
stock. The petitioner did not submit a copy of any stock certificates, its st?Ck ledger, or evidence addressing the
acquisition of the petitioner's stock.
On October 31, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that it has a qualifying relationship with the foreign employer.
On appeal, the petitioner asserts that it is a qualifying organization. In support, the petitioner submits additional
evidence, including a copy of a stock certificate.
Upon review, the petitioner's assertions are not persuasive.
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying
the petition. 8 C.F.R. § 103.2(b)(14). In this matter, the petitioner failed to submit a copy of its stock
certificates, stock ledger, and evidence addressing the acquisition of the petitioner's stock, even though this
evidence was specifically requested by the director. The petitioner's failure to submit this evidence upon request
precluded a material line of inquiry into whether the petitioner and the foreign employer are qualifying
organizations. Therefore, the director properly denied the petition on this basis.
Also, where a petitioner has been put on notice of a deficiency in the evidence and has been given an
opportunity to respond to· that deficiency, the AAO will not accept evidence offered for the first time on
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec. 533 (BIA
1988). If the petitioner had wanted the stock certificate and additional materials submitted on appeal to be
considered by the director, it should have submitted the documents in response to the director's request for
evidence. Id. Under the circumstances, the AAO need not, and does not, consider the sufficiency of the
evidence submitted on appeal. The appeal will be adjudicated based on the record of proceeding before the
director. Accordingly, the petitioner has not established that it and the foreign entity are qualifying
organizations, and the petition may not be approved for this reason.
Furthermore, the record in this matter is so rife with unresolved inconsistencies that it is impossible to confirm
either organization's ownership and control. For example, in response to the director's Request for Evidence
regarding the ownership and control of the foreign employer, the petitioner submitted a list of owners of the
foreign employer indicating that owns a 26.7% interest. However, the petitioner also
submitted a translation of the foreign employer's articles of association which indicate that the foreign employer,
I is 80% owned by . It is unclear whether these two
documents concern different companies, whether they concern the same company at different times, or whether
they are simply inconsistent with one another. Moreover, in response to the director's Request for Evidence
regarding the ownership and control of the petitioner, the petitioner submitted a resolution dated December 20,
2005 indicating that wns a 60% interest in the petitioner. However, the petitioner also
submitted a stock certificate on appeal which indicates that 10,000 shares of stock were issued to "Movell
Corporation" on January 31, 2006. The petitioner also asserted in the Form 1~129 that it is a "joint venture" of the
foreign employer and that the "[c]ompany stock ownership and managerial control of each company" is 40%.
The petitioner does not attempt to clarify or resolve any of these fundamental inconsistencies in the record. It is
WAC 0613350613
Page 6
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA
1988).
Finally, the petitioner has not established that it or the foreign employer is currently "doing business" as defined
by the regulations. As properly noted by the director, the petitioner failed to submit a complete copy of its
business premises lease upon request. Once again, the failure to submit requested evidence that precludes a
material line ofinquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). As the petitioner's
failure to submit a copy of its lease precluded a material line of inquiry into its ongoing business activities, the
petition may not be approved for this reason. Moreover, while the record contains evidence that the petitioner
began doing business in 2004 (see supra), the record is devoid of evidence of any current business activity by
the petitioner or the foreign employer. 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)). Therefore, as the petitioner has failed to establish that it or the foreign employer is currently doing
business, if has failed to establish that either entity is a qualifying organization.
Lastly, the petitioner's attempt to supplement the record on appeal with a copy of its lease was inappropriate
and will not be considered. Not only may the petitioner not submit the lease for the first time on appeal when
the director had specifically requested this evidence (see Matter of Soriano, supra), the petitioner apparently
only submitted a cover letter and not the actual lease. Therefore, despite the petitioner's assertion on appeal,
the complete lease was not submitted.
Accordingly, the petitioner has not established that it and the foreign employer are qualifying organizations,
and the petition may not be approved for this reason.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary will be employed
in the United States, or has been employed abroad, in a primarily managerial or executive capacity.
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;
(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,
WAC 0613350613
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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 does not clarify in the initial petition whether the beneficiary performed, or will perform ,
primarily managerial duties under section 101(a)(44)(A) of the Act , or primarily executive duties under
section 101 (a)(44)(B) of the Act. A petitioner may not claim that the beneficiary was, or will be, employed as
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. Given the lack of
clarity, the AAO will assume that the petitioner is asserting that the beneficiary was, and will be, employed in
either a managerial or an executive capacity and will consider both classifications .
The petitioner described the beneficiary's job duties in the United States in a letter dated March 7, 2006 as
follows:
We intend to employ [the beneficiary] to fill the Office Manager position in [the petitioner] .
In this capac ity, [the beneficiary] will manage the office operation for the company. His
responsibilities include office administration , hiring, communication with the employees of
the [foreign employer]. [The beneficiary] was teaching Computer Science as a professor at a
univers ity in China. He is [an] expert of computer.
The petitioner described the beneficiary's job duties abroad in the Form 1-129 as follows: "Office Manager.
Charge [sic] of Logistics; Personal [sic] Management ; Finance Supervision."
On May 11, 2006, the director requested additional evidence . The director requested , inter alia,
organizational charts for both the foreign employer and the petitioner which include job descriptions for the
beneficiary's claimed subordinates, a more detailed description of the beneficiary's duties both abroad and in
WAC 0613350613
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the United States, and the petitioner's wage reports for its United States employees for the last four quarters.
In response, the petitioner submitted a document titled "Duties in the U.S." in which the petitioner describes
the beneficiary's proposed duties as follows:
[The beneficiary] will manage the office operation for the U.S. entity. His responsibilities
include office administration, hiring, communication with the employees of [the foreign
employer]. Hold the fort while the boss is absent.
The petitioner submitted an organizational chart for the United States operation and a quarterly wage report
for the first quarter of 2006. The wage report indicates that the petitioner employed a chief executive officer,
a vice president, and an accounting employee in the first quarter of 2006. The organizational chart indicates
that the petitioner also employs a system architect, who reports to the vice president, although this worker
does not appear on the most recent quarterly wage report. The beneficiary's position, office manager, is
placed beneath the accounting employee on the organizational chart and is not portrayed as having any
supervisory or managerial responsibilities over other employees.
The petitioner also submitted an organizational chart for the foreign employer. The beneficiary is portrayed
as reporting to the foreign employer's president and as supervising an accountant/cashier, a human resources
manager, and an administrator/general affairs employee. The beneficiary's three subordinates are not shown
as having supervisory or managerial control over other employees. The petitioner also did not describe the
duties of the three foreign subordinates.
Upon review, the petitioner did not establish that the beneficiary has been employed abroad or will be
employed in the United States in a primarily managerial or executive capacity, and the petition may not be
approved for these additional reasons.
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(1)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties in question and indicate whether such duties are either in an executive
or managerial capacity. ld. As explained above, a petitioner cannot claim that some of the duties of the
position entailed, or will entail, executive responsibilities, while other duties were, or will be, managerial. A
petitioner may not claim that a beneficiary was, or 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 has failed to establish that the
beneficiary acted, or will act, in a "managerial" capacity. In support of its petition, the petitioner has provided
a vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary
did, or will do, on a day-to-day basis. For example, the petitioner states that, in his foreign position, the
beneficiary served as the "office manager" and that he was in charge of logistics, personnel management, and
finance matters. However, the petitioner does not explain what, exactly, the beneficiary did to perform these
duties. Furthermore, the petitioner states that, in the United States, the beneficiary will engage in "office
administration" and that he will perform duties related to hiring, communicate with the foreign employer, and
WAC 0613350613
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"[h]old the fort while the boss is absent." However, the petitioner similarly fails to explain what, exactly, the
beneficiary will do in accomplishing these tasks. The fact that the petitioner has given the beneficiary
managerial titles and has prepared vague job descriptions which includes overly broad duties does not
establish that the beneficiary actually performed, or will perform, managerial duties. Broad, conclusory
statements such as those found in the instant job descriptions are not probative of the beneficiary's
performance of managerial or executive duties. 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 (E.D.N.Y.
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 supervised and controlled, or will supervise and
control, the work of other supervisory, managerial, or professional employees. As explained in the record, the
beneficiary appears to have supervised three workers abroad. However, the petitioner failed to establish that
any of these workers were truly supervisory or managerial employees. Not only are they not portrayed in the
organizational chart as having supervisory or managerial control over other workers, the petitioner failed to
specifically describe their duties even though the director requested this evidence. Again, failure to submit
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R.
§ 103.2(b)(14). Job titles alone do not establish that subordinate workers were supervisory, managerial, or
professional employees. Furthermore, the organizational chart for the United States operation does not
portray the beneficiary as having any supervisory or managerial responsibilities over other employees. To the
contrary, he is shown to be one of the lowest ranked employees in the hierarchy.
In view of the above, the beneficiary would appear to have been, at most, a first-line supervisor of non­
professional employees, the provider of actual services, or a combination of both. In the United States, it
appears that the beneficiary will perform the tasks necessary to provide a service or to produce a product and
will not primarily perform qualifying duties. It does not appear that he will be relieved of performing non­
qualifying tasks by a subordinate staff. 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.
Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at
604. Furthermore, the petitioner has not established that the subordinate employees abroad were professional
employees.I Therefore, the petitioner has not established that the beneficiary was, or will be, employed
primarily in a managerial capacity?
lIn evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the
subordinate positions required 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
WAC 0613350613
Page 10
Similarly, the petitioner has failed to establish that the beneficiary acted, or 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, a
beneficiary 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 acted, or will act, primarily in an executive capacity. The job
descriptions provided for the beneficiary are so vague that the AAO cannot deduce what the beneficiary did,
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).
2Whilethe petitioner has not argued that the beneficiary managed, or 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 defmed by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
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. § 214.2(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 managed, or will manage, an essential function. The petitioner's
vague job description fails to document what proportion of the beneficiary's duties were, or will be,
managerial, if any, and what proportion were, or wiIl be, non-managerial. Also, as explained above, the
record establishes that the beneficiary was, at most, a first-line supervisor of non-professional workers and/or
performed, or will perform, non-qualifying operational or administrative tasks. In other words, he will
perform the tasks related to the function rather than manage the function. Absent a clear and credible
breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine what
proportion of his duties were, or will be, managerial, nor can it deduce whether the beneficiary primarily
performed, or will perform, the duties of a function manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48
F. Supp. 2d 22, 24 (D.D.C. 1999).
WAC 06 13350613
Page II
or will do, on a day-to-day basis. Moreover, as explained above, it appears that the beneficiary was , at most,
employed as a first-line supervisor and likely performed , and will perform, the tasks necessary to produce a
product or to provide a service. Finally, the organizational chart of the foreign employer indicates that the
beneficiary reported, and will report, to a president or chief executive officer . It appears that any authority to
realistically direct the organization would have been, or will be, vested in this individual and not in the
beneficiary. Therefore, the petitioner has not established that the beneficiary was, or will be, employed
primarily in an executive capacity.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary was, or will be, primarily
performing managerial or executive duties, and the petition may not be approved for these additional reasons.
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), 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. , 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.