dismissed L-1A Case: Tobacco Products

·',
identifying data deleted to
"prevent clearly unwarranted
invasionofpersonalprivacy
PUBLICCOPV
,
\
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
/
File: WAC 04 081' 51317 " Office: CALIFORNIA SERVICE CENTER Date: A~G 0 32005
IN RE: Petitioner: .
Beneficiary>
/
/
Petition: <'--'Petition (or a Nonimmigrant Work~r Pursuant to Section 101(a)(l 5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1l01(a)(l5)(L) ., .
. l' .1/>··..,·
IN BEHALF OF PETITION.E;R:. "
... I • 'j
INSTRUCTIONS:
This is the. decision of the Administrative Appeals Office in your case. All documents have been returned to
the office thar originally decided your case. Any further inquiry must be made to that office.
~
, ,--:::= .... ~._._~..
~...-- ------~.~ ,,- -- ~.::...
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC0408l513l7
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 AAO will dismiss the appeal.
The petitioner] filed this nonimmigrant visa petition seeking to extend the employment of its managing
director/president as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) ofthe
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation
organized under the laws of the State of California and is allegedly engaged in the business of purchasing and
selling of tobacco and tobacco products. The petitioner claims a qualifying relationship with Mustapha
Hassan Trading Est., located in Dubai, United Arab Emirates. The beneficiary was initially granted a one­
year period of stay to open a new office iii' the United States and was subsequently granted a two year
'extension. The petitioner now seeks to extend the beneficiary's stay for an additional two years.
. The director denied the petition concluding that the petitioner did not establish that the beneficiary has been ,
or will be employed in the United-States in a primarily managerial or executive capacity,
The petitioner filed an appeal.2 The director declined to treat the appeal as a motion and forwarded the appeal
to the AAO for review. On appeal, the petitioner asserts that the director erred in denying the petition for
failing to follow the guidance in an April 23, 2004 Citizenship and Immigration Services (CIS) Interoffice
Memorandum. This Memorandum provided guidance on the process by which an adjudicator, during the
adjudication of a subsequent request for petition extension, may question another adjudicator's prior approval
of a nonimmigrant petition where there has been no material change in the underlying facts.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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
I It should be noted that the petitioner is identified in the Form 1-129 as Malcolm Import Export, Inc.
However, according to the corporate records for the State of California, the name of the corporation is
actually Malcolm Export Import, Inc.
2 The Form G-28, Entry of Appearance as Attorney or Representative, dated November 8,2004, which was
submitted for the record was signed by Mary Agnes Fernandes, the spouse of the beneficiary (identified in the
G-28 as "applicant"), not by an authorized representative of the petitioner. Moreover, the 1-290B, which was
submitted also clearly states that the attorney is acting on behalf of Mary Agnes Fernandes, and not on behalf
of the Petitioner, Malcolm Export Import, Inc. A third party is not an affected party in this proceeding, and
the attorney for a third party may not be recognized. 8 C.F.R. § 103.3(a)(l)(iii)(B); 8 C.F.R. §103.3(a)(2)(v).
Accordingly, while the assertions made by counsel may be addressed, 'they will not be given any weight in
this proceeding.
WAC 04 08151317
Page 3
specialized knowledge capacity.
J
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual pet~tion 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
knowledge capacity, including a d~tailed 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.
The regulation at 8 C.F.R. § 214.2(l)(l4)(i) .also provides that a visa petition may be extended by filing a new
Form 1-129. The petitioner does not need to supply supporting documentation unless requested by the
director.
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. § 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,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
WAC 04 08151317
Page 4
(iv) exercises discretion over the day to d~y 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 .merel y 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 arid policies of the 'organization, component , or function;
(iii) exercises 'wide latitude in discretionary decisio~ making; and
(iv) recei ves only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify whether the berieficiary is claiming to be primaril y engaged in managerial
duties under section 10I(a)( 44)(A) of the Act, or primaril y executive duties 'under section 10l(a)( 44)(B)' of
the Act , and implies in its rebuttal to the director's Notice of Intent to Deny that the beneficiary is acting as
both . A beneficiary may not claim to 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 managet .
. In the initial 1-129 petition, the petitioner described the beneficiary's job duties as follows: "To continue to
manage and expand the business in the United States, hire personnel and make all financial and administrative
decisions for the company." Further, in the supporting materials submitted with the initial petition, the
petitioner includes an undated 'support letter; which states that the petitioner has one U.S. employee and is in
. the 'process of hiring two more . The remainder of the initial petition co~sist s of tax forms, bank and financial
documents, a lease , and information regarding the foreign entity.
On March 11, 2004, the director issued a Notice of Intent to Deny givin g the petitioner thirty days to submit
additional information, evidence , or arguments to support the petition . .-The director explained in the Notice
that there ' was insufficient evidence to demonstrate how the beneficiary's daily activities, or the specific scope
and nature of his acti vities, will be managerial or e xecuti ve. Title 8 C .F.R. § 2l4 .2(l)(l4)(i) specifically
permits the director to request supporting documentation in the context of an Ll extension petition.
In response, the petitioner submitted a letter of support dated April 4, 2004 explaining the following :
. .
As president of the new subsidiary, [the beneficiary] was responsible for establishing all
WAC0408l5l3l7
Page 5
aspects of the new office. He made all decisions regarding the nature and path of the new
business. He was responsible for designing and developing sales and marketing activities
to insure that the subsidiary was correctly positioned in a new market. Although the new
office relied on outside consultants in the start-up period, [the petitioner] now relies on
house staff.
[The beneficiary] has the authority to hire and fire personnel. He has hired an assistant.
* *
[The beneficiary] has been responsible for carrying out operational goals and actions. He
has managed a budget for sales and marketing.
Under only general direction of the board of the parent company, [the beneficiary] has
establis~ed a foundation for doing business in a competitive American market. He has
worked to create an image for the company and its products in the local market.
The parent company has relied on the recommendations of [the beneficiary] in setting a
budget. It has also relied on his analysis of the American market.
[The beneficiary). has been responsible for making independent adjustments to the
business strategy of the subsidiary based on his observations of the North American
market and feedback received from buyers, distributors, sellers ,and users. He has taken
action within the organization to effect such necessary changes in policy and goals.
* * *
[The beneficiary] has been vested with discretionary authority over the day-to-day
strategic decisions regarding the sales and distribution activities of the USA subsidiary,
including the hiring of personnel and outside contractors, the firing of same, choice of
business model, design of buyer incentive programs, negotiations of leasing and other
contracts.
[The beneficiary] was responsible for the negotiation and approval of contracts with
North American sellers.
* * *
[The beneficiary] periodically consults with the board of the parent company regarding
the results of various marketing efforts and sales programs selected by the General
Manager of the parent company.
[The beneficiary] , as president, is responsible for strategic managerial decisions affecting.
sales and marketing subject to periodic review of the board of directors.
[The beneficiary] has had day-to-daydiscretionary authority to direct the operations of
WAC 04 08151317
Page 6
the US subsidiary during his three years of temporary employment in L1A status.
[The beneficiary] has hired two people to carry out the daily activities of the business.
Although he has the power to fire any'employee, he has yet to exercise that power.
In further pursuit of his responsibilities, he has implemented a business plan for the USA
subsidiary. He has directed that the company target specific aspects ofthe retail market.
[The beneficiary] has adjusted the overall sales and marketing strategy to fit the local
market. Adjustments to the overall business plan were implemented by [the beneficiary]
as the President of the company, and he continues to adjust the strategic approach to the
USA market on an ongoing basis.
[The beneficiary] has had to adjust the budget of the subsidiary as the recession in the
United States continues. This has meant that he has had to abandon certain economic
assumptions as he has seen fit according to his entrepreneurial experiences both abroad
and here.
. [The beneficiary's] extensive executive' experience {n the retail industry has allowed him
to arrange for local financing on attractive credit terms. This flexibility has been critical
in giving the relatively new business an opportunity to operate in a fiscally responsible
and orderly manner.
* * *
[The beneficiary] has been responsible for controlling the prices of products in-the new
,market. He has relied on wide-ranging. sources, including industry reports and
consultants, toallow him to price products attractively on an ongoing basis. To maintain
our pricing edge, [the beneficiary] must adroitly calculate consumer desire and
confidence, industrytrend changing, industry margins and termsof payment.
[The beneficiary] had done this with a specific business strategy tailored' to the US
market.
Examples of specific goals and policies that the president has established are:
1. Be open to all aspects ofthe marketplace.
2. Pursue different approaches to each distinct area of the marketplace.
3. Hire more staff as soon as finances permit. Quality people, plus quality
product, equals a successful company.
4. Publicize the product without overpaying.
Some discretionary decisions that the beneficiary has exercised during his tenure with the
\
WAC 04 08151317
Page 7
company include:
1. .Selected .office and store premises and extended leases . Searched for
. new expansion sites.
2. Hired a professional to handle accounting.
3. Chose a .website designer.
4. Chose product line that would most appeal to consumers .in new North
American market. Adjusted product line in response to retailer reaction.
Discarded overly floral line that was a success in Asia in favor of simpler
designs for American market.
5. Set pricing policies based on market research and targeting of outlet­
specific pricing.
6. Guided purchase policy.
On October 8, ,2004 , the director denied the petition. The director determined that the petitioner did not
establish that the beneficiary has been or will be employed in the Unite,d States in a primarily managerial or
executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager.
In support of this appeal , the petitioner relies on the fact that CIS approved an L-l A petition submitted on
behalf of the beneficiary in 2002 by the same petitioner for the same position . The petitioner argues that the
director failed to follow the guidelines established in an April 23, 2004 Citizenship and Immigration Services
(CIS) Interoffice Memorandum. This Memorandum provided guidance on the process by which an .
adjudicator, during the adjudication of a subsequent request for petition extension, may question another
adjudicator's prior approval of a nonimmigrant petition where there has been no material change in the
underlying facts. . Specifically, this Memorandum states that adjudicators should give deference to prior
approvals involving the same underlying facts except where: (1) it is determined that there was a material
error with regard to the previous petition approval ; (2) a substantial change in circumstances has taken place;
or (3) there is new material information that adversely ' impacts the petitioner's or beneficiary's eligibility.
Memo. From William R. Yates, Associate Director for Operations, to Service Center Directors, The
Significance of a Prior CIS Approval of a Nonimmigrant Petition .in the Context of a Subsequent
Determination Regarding Eligibility for Extension a/Petition Validity (April 23, 2004). The Memorandum
also states that the adjudicator should clearly articulate the material error , changed circumstances, or new
material information in his or her decision. Id. The petitioner argues that, since the director did not articulate
any of these three justifications for not deferring to the earlier approval, the decision was in error.. . .
Upon review, petitioner's ' assertions are . not persuasive . . Even though the director did not specifically
determine that there was material error with regard to the previous petition, the AAO agrees with the director
that, upon a review of the facts, the earlier determination that the beneficiary was working primarily in a
managerial or executive capacity was a material error. '
3 Before further addr~'ssing the merits of the appeal, the legal significance of the April 23, 2004 Memorandum
should be addressed. This Memorandum, which specifically states that adjudicators ar~ not bound to approve { '
I
WAC 0408151317
Page 8
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(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. The petitioner 'must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained' above, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
managerial.' A beneficiary may not cla{mto 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 has failed 'to prove that the beneficiary will act in a "managerial" capacity. In support of its
application, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that,
subsequent petitions where ineligibility has not been demonstrated because of erroneous prior approvals,
limits its authority on Page 4 of the Memorandum:
This memorandum is intended solely for guiding USCIS personnel in performance of their
professional duties. It is not intended to be, and may not be relied upon, to create any
right or benefit, substantive or procedural, enforceable at law by any individual or other
party in removal proceedings, in litigatiori with the United States, or in any other form or
matter.
fd.
Courts have consistently supported this position. Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir.
2000) (holding that CIS memoranda merely articulate internal guidelines for INS personnel; they do not
establish judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely"); see also Noel v.
Chapman,508 F.2d 1023 (2nd Cir. 1975) (finding that policy memoranda to INS district directors regarding
voluntary extended departure determinations to be "general statements of policy"); Prokopenko v. Ashcroft,
372 F.3d 941, 944 (8thCir. 2004) (describing an INS Operating Policies and Procedures Memorandum. I
(OPPM) as an "internal agency memorandum," "doubtful" of conferring substantive legal benefits upon
aliens or binding the'INS); Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (describing an INS
Operations Instruction (01) as an "internal directive not having the force and effect of law"); Ponce-Go~zelez
v. fNS, 775 F.2d 1342, 1346-47 (5th Cir. 1985) (finding that OIs are "only internal guidelines" for INS
personnel, and that an apparent INS violation of an 01 requiring investigation of an alien's eligibility for
statutory relief from deportation was at worst "inaction not misconduct").
Therefore, the Memorandum does not create any substantive rights in the petitioner, and a director's failure to
follow the guidance in the Memorandum would not be grounds for a withdrawal of the decision.
· WAC 04 08151317
Page 9
fails to demonstrate what the beneficiary does on aday-to-day basis. For example , the petitioner states that
· the beneficiary's duties include making independent business decisions, carrying out goals and actions, hiring
and firing employees, implementing the business plan, arranging financing , pricing products, and designing
marketing activities . The petitioner did not, however, define the beneficiary's goals or policies, his marketing
plan, his financing package, his products, or his business plan. The petition also failed to clarify who actually
will do the work that is being managed . 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). Specifics are clearly an important indication of whether a
beneficiary's duties are pri~arily 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.2d4l (2d. Cir. 1990). \
The petition~r also failed to supply a job description for the beneficiary's subordinate( s) or to explain whom,
exactly, will be providing the . services being rendered by the petitioner. , As correctly determined by the
director, the beneficiary would appear to be either a first-line supervisor .or the provider of actual services. 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
I . . .
also Matter of Church Sci entology Intl., 19 I&N Dec. 593,604 (Comm. 1988): A managerial or executive
employee must haveauthority 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 Intl., 19 I&N Dec. at 604 . .Since record fails to reveal the educational or skill level of
the subordinate employee, it cannot be determined if he rises to the level of professional employees ."
Therefore, the record does not prove that the beneficiary is acting in a managerial capacity.
Similarly, the petitioner has failed to prove 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, 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 oil the broad goals and policies of the organization rather than ,
4 In evaluating whether the beneficiary mariages 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 term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementaryor secondary
schools, colleges, academies , or seminaries ." The term "profession" contemplates knowledge or learning , riot
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).
WAC 04081 51317
Page 10
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 emplo yee. 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." !d. As indicated above, the petitioner has failed to prove that the
beneficiary, who -is allegedly managing no more than one employee who is apparently engaged in providing
services to customers, will be acting primarily in an executive capacity.
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).
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 petition. See section
·29 1 of the Act, 8 U.S.C. § 1361. The prior approvals do not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner' s qualifications . Texas A&M Univ. v. Upchurch, 99 Fed .
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Therefore, even though the petitioner was successful in the
.past in petitioning for the beneficiary , the director properly denied the petition in this case .
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and
contradictory assertions that are contained in the current record , the approval would constitute material and
gross error on the part of the director. The AAO is not required to approve an application or petition where
eligibility has not been demonstrated merely because of prior approvals that may have been erroneous . See,
e.g., Matter ofChur ch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd
to suggest that CIS Or any agency must treat acknowledged errors as binding precedent. Sussex Eng'g. Ltd. v.
Montgomery, 825 F.2d 1084, 1090 (6 th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
In this case, not only was there material and gross error in determining that the beneficiary was serving in a
primarily executive or managerial capacity for the r easons outlined above, but there was material and gross
error in determining that a qualifying relationship exists between the pet itioner and the foreign entity ,
Mustapha ~assan Trading Est.
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 arid the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this
-- section.
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 definit ions of a parent, branch, affiliate
wAc 04 081 51317
Page 11
or subsidiary spe cified in paragraph (1)(1)(ii) of thi s section." An "affiliat ~" is defined, in part , as "one or t wo
subsidiaries both of which are owned and controlled b y the same parent or indi vidual."
The 1-129 petition purports that the foreign entity, , is 100% owned by Mr.
The 1-129 a lso purport s that is a 50% s hareholder in the
petitioner .· If true , this would establish that t he t wo e ntities are " affili ates" under the definition above .
However, upon reviewing the tax document s submitted by the petitioner with the initial petition ~nd in its
rebuttal to the Noti ce of Intent to Deny, it is now clear that the two entities are not affiliated. The petitioner's
IRS Forms 1120 from 2001 and 2003, and the petitioner's California Corporate Income Tax forms from 2001
and 2002, clearly and consistently identify the beneficiary as the 100% owner of petitioner. Therefore, the
two entities are 100 % owned by two different people. It is incumbent upon the petitioner to resolve any
inconsistencies in the record by independent objective evid ence. Any attempt to explain or reconcile such
inconsi stencie s will n ot suffice unless the pet itioner submit s competent obje ct i v~ evidence pointing to where
the truth lies. Matter ofHo, 19 I&N Dec. 582, 59l -92 (BIA 19 88). Therefore , since the record indicates that
the petitione r and th e foreign entity are n ot affiliated,there w as a mat erial o r gross err or in the appro val of the
earlier petition and the p etition for exten sion may properl y be denied .
An application or p etition that fails to c ompl y with th e technical requirem ents o f th e law may be deni ed by
the AAO e ven if the Service Center does n ot identif y a ll of the ground s for denial in the initial deci sion. See
Spencer Enterpr ises, Inc. v. United Stat es, 229 F. Supp. 2d 1025 , 1043 (E.D . Cal. 2 00 1), aff'd, 345 F .3d 683
(9th C ir. 2003); see also Dol' v. INS, 89 1 F.2d 997, l002 n. .9 (2 d Cir . 1989) ( noting that the AAO re views
appeals on a de novo basis) .
The petit ion will b e denied for the abo ve s tated re asons, with each considered as an independent and
alternative basis for denial. When the AAO d enies a petition on multipJe alternative grounds, a plainti ff can
succeed on a challen ge only if it is shown that th e AAO abused its discretion with respect to all of the AAO's
enumerated grounds . See Spencer Enterprises, In c., 229 F. Supp. 2d at 1043.
In visa petition proceedings , the burden of provin g e ligibility for the benefit sought remains entirely w ith the
petitioner. Section 291 of the Act , 8 U.S.c. § 1361. H ere, that burden lias not been met. Accordingly, the
appeal will be dismi ssed .
'Finall y, based on the reasons for the den ial of the in stant petition, a review of the prior L-1 nonimm igrant
petitions appro ved on behalf of the benefi ciary is warranted to determin e if they were also appro ved in error.
Therefore , the di rector shall re view the pri or L-l . nonimm igrant petiti ons approved on behalf of the
beneficiary for pos sible revocation in accordanc e with 8 C.F.R. § 214.2(1)(9).
ORDER:
FURTHER ORDERED:
The appeal is dismi ssed.
The dir ector shall review the prior L- l nonimmigrant petitions approved on
behalf of the benefic iary for possibl e revocation pursuant to 8 C.F.R. .§
214 .2(1)(9).