dismissed L-1A Case: Trading And Communication

PUBLIC COpy
identifyingdatadeletedto
preventclearly unw~ted
invasionof personalpnvacy
U.S. Department of Homeland Security
20 Massachusetts A ve., N.W., Rm. A3000
Washington , DC 20529
U.S. Citizenship
and Immigration
Services
File: EAC 0624950312 Office: VERMONT SERVICE CENTER Date: OCT 0 32001
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. § ll0l(a)(15)(L)
IN BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decis ion of the Adm inistrati ve Appeals Office in your case . All documents have been returned to
the office that orig inally decided your case. Any further inquiry must be made to that office.
~~rRobe~~~hief
Administrative Appeals Office
www.uscis.gov
EAC 06 24950312
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 visa petition seeking to extend the employment of its general manager
as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The p~ration organized under the laws
of the State of Florida and is allegedly in the business of~ading [and] communication."
The beneficiary was initially granted a one-year period of stay to open a new office in the United States, and
the petitioner now seeks to extend the beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish that the United States entity
has been engaged in the regular, systematic, and continuous provision of goods and/or services.
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 asserts that, because the beneficiary
has been engaged in setting up the new office in the United States since his arrival in the United States in
November 2005, the petitioner has been "doing business."
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)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(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 himlher 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.
EAC 06 249 50312
Page 3
The regulation at 8 C.F.R. § 214.2(1)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(l )(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l)(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
The primary issue in the present matter is whether the United States entity has been engaged in the regular,
systematic, and continuous provision of goods and/or services.
A visa petition which involved the opening of a "new office" may be extended by submitting evidence that
the petitioner "has been doing business as defined in paragraph (l)(l)(ii)(H) of this section for the previous
year." 8 C.F.R. § 214.2(l)(l4)(ii)(B). "Doing business" is defined in part as "the 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 initial "new office" petition was approved from September 15, 2005 until September 14,
2006 (SRC 05 241 51145). The beneficiary was issued a nonimmigrant visa on November 3,2005 and was
admitted to the United States on or about December 9, 2005. As evidence of business activity, the record
contains a lease for a mobile telephone business commencing July 6, 2006; invoices for mobile telephone
equipment commencing June 2, 2006; intermittent payroll records commencing April 26, 2006; corporate
organizational documents; and bank account statements. On appeal, the petitioner asserts the following:
Within ten months of [the beneficiary's] stay, the beneficiary carried out the functions of
General Manager. He streamlined banking, funds transfer, furnishing of office, tie up of
administrative details including telephones, fax, computers, hiring of essential staff,
formulate marketing [and] sales strategies for [l]eather garments, accessories and other
products of the parent company. This establishes that the fact that the United States entity
has been doing business with 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. As per the plan of
action the petitioner was to introduce the sample products in the New Year of 2007. This
target was duly achieved; however the unfortunate decision came before the evidence for the
EAC 06 249 50312
Page 4
same could be provided.
The petitioner also submitted a copy of a "commercial lease" dated August 15,2005. However, the lessee in
this lease appears to be a business called "NSPL Inc." The petitioner offers no evidence connecting this lease
to it nor does it explain what business was conducted, if any, at this location after the approval of the new
office petition in September 2005.
Upon review, the petitioner's assertions are not persuasive.
In this matter, the record does not establish that the petitioner was "doing business" as defined by the
regulations for the previous year. The record is devoid of any evidence establishing that the petitioner was
"doing business" prior to June 2006. While the petitioner may have been organized under Florida law and
may have maintained bank account(s) since the approval of the new office petition in September 2005, this
does not establish that the petitioner was engaged in the regular, systematic, and continuous provision of
goods and/or services. Furthermore, the beneficiary's activities between December 2005 and June 2006, e.g.,
setting up the business, furnishing an office, and formulating sales strategies, do not alone constitute "doing
business." As indicated above, there is no evidence in the record that the petitioner was engaged in the
regular, systematic, and continuous provision of goods and/or services during that time frame. Instead, the
record indicates that business activity did not commence until, at the earliest, June 2006, almost nine months
after the approval of the initial "new office" petition.
Moreover, as correctly noted by the director, the record contains serious inconsistencies regarding the
petitioner's business activities which undermine the credibility of the petition. For example, the petitioner
submitted on appeal a copy of a lease dated
Jacksonville, Florida, as evidence of prior business activity. However, the lessee in this lease is not the
petitioner. The lessee is identified as a company called NSPL, Inc. The petitioner offers no explanation for
this inconsistency and, importantly, fails to explain what business activities took place at this location. It is
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). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Id. at 591.
Accordingly, the petitioner has failed to establish that it has been doing business for the previous year, and the
petition may not be approved for this reason. 8 C.F.R. § 214.2(l)(l4)(ii)(B).1
'n is noted that the director appears to have partially based her decision to deny the instant petition on the
petitioner's decision to shift the focus of its "new office" business activities away from importing leather
goods to mobile telephone sales and service. To the extent the petition was denied due to this deviation from
the petitioner's original business plan, the director's decision is hereby withdrawn in part to exclude this basis
as one of the reasons for the petition's denial. The fact that a "new office" commences operations in the
United States and decides, during its first year in operation, to change the focus of its business activities is not
alone sufficient grounds to deny an extension petition. That being said, the instant petition was properly
denied because the petitioner failed to establish that it was doing business of any kind during the first nine
months of its "new office" period. See 8 C.F.R. § 214.2(l)(l4)(ii)(B). It is also of concern that the record is
EAC 06 24950312
Page 5
Beyond the decision of the director, the petitioner failed to establish that the beneficiary will be employed in
the United States in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § I 101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 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 will primarily perform 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 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
devoid of any evidence that the petitioner ever attempted to pursue the line of business that was apparently the
basis for its initial "new office" petition.
EAC 06 249 50312
Page 6
statutory definition for executive and the statutory definition for manager.
The petitioner described the beneficiary's job duties in a letter dated August 25, 2006 as follows:
The beneficiary is responsible for all the operational and management functions of the
company in the United States. His duties include negotiations with customers, formulate
policies, hire and fire employees, set goals[,] handle cash flow and start new ventures. The
beneficiary has absolute authority for the operations and management of the company in the
United States.
Apart from marketing company products, [the beneficiary] has started a T[-]Mobile Cellular
Location in Orange Park Mall, to revolve and utilize the income generated in the US for the
fluent [sic] operation of the branch in the U.S.
On September 13, 2006, the director requested additional evidence. The director requested, inter alia,
evidence addressing the duties of the petitioner's employees as well as the petitioner's management and
personnel structure.
In response, the petitioner submitted an organizational chart showing the beneficiary supervising a "marketing
manager" and an "administration manager." The chart identifies seven vacant positions. The petitioner
further described the beneficiary's duties in an attachment to the organizational chart as follows:
Establish the company, arrange staffing, and conduct functions of a General Manager.
Secure the growth of the US branch office under his management, develop market strategy,
negotiate deals, sign contract, manage cash flows, make personnel related decisions such as
hire and fire of personnel, employee benefits and confer with the Director of parent company,
regarding current American market and set price, analyze and evaluate market trends,
participate in exhibitions, [sic] shows to observe the market trend and for promotion and
report directly to the board of directors in India. Train the Administrative Manager to direct
the development of operation system thus relieving him from performing the non-managerial
day-to-day operations involved.
The petitioner also described the "administrative manager" as performing day-to-day administrative and sales
tasks. The petitioner did not describe the "marketing manager."
Title 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description ofthe job
EAC 06 249 50312
Page 7
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. As explained above, a petitioner cannot claim that some of
the duties of the position entail executive responsibilities, while other duties are managerial. A petitioner may
not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of
the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary 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 will do on a day-to-day
basis. For example, the petitioner states that the beneficiary will "formulate policies" and "develop [a] market
strategy." However, the petitioner does not specifically define these policies and strategies. The fact that the
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description
which includes inflated job duties does not establish that the beneficiary will actually perform managerial
duties. Specifics are clearly an important indication of whether a beneficiary's duties are 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).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
many duties ascribed to him. This is particularly important in this matter because many of the duties listed by
the petitioner appear to be non-qualifying administrative or operational tasks which do not rise to the level of
being managerial or executive in nature. For example, the petitioner states that the beneficiary will negotiate
with customers, handle cash flow, market products, negotiate deals, and participate in exhibitions. However,
such duties constitute non-qualifying administrative or operational tasks. As the petitioner has not established
how much time the beneficiary will devote to such non-qualifying tasks, it cannot be confirmed that he will
"primarily" be employed as a manager. 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).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart, wage reports, and job descriptions for the subordinate staff members,
the beneficiary appears to supervise a staff of two employees. However, the petitioner has not established
that the two employees are primarily engaged in performing supervisory or managerial duties. To the
contrary, it appears that these employees are performing the tasks necessary to produce a product or to
provide a service. Furthermore, the petitioner's projected hiring of additional staff members in the future is
not relevant to the instant "new office extension" petition. A visa petition may not be approved based on
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts.
See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec.
45, 49 (Comm. 1971). In view of the above, the beneficiary would appear to be primarily a first-line
supervisor of non-professional employees, the provider of actual services, or a combination of both. A
EAC 06 249 50312
Page 8
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. Moreover, as the petitioner did not
establish the skill level or educational background required to perform the duties of the two subordinate
positions, the petitioner has not established that the beneficiary will manage professional employees.'
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial
. 3
capacity.
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, 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
2In evaluating whether the beneficiary manages 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 elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
3While the petitioner has not argued that the beneficiary will manage an essential function of the organization,
the record nevertheless would not support this position even if taken. The term "function manager" applies
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is
primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
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.P.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary is primarily a first-line supervisor of non-professional employees and/or is engaged in performing
non-qualifying operational or administrative tasks. Absent a clear and credible breakdown of the time spent
by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties would be
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager.
See IKEA US, Inc. v. Us. Dept. ofJustice, 48 P. Supp. 2d 22,24 (D.D.C. 1999).
EAC 06 249 50312
Page 9
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
A company's size alone, without taking into account the reasonable needs of the organization, may not be the
determining factor in denying a visa to a multinational manager or executive. See § 101(a)(44)(C) of the Act.
However, in reviewing the relevance of the number of employees a petitioner has, federal courts have
generally agreed that CIS "may properly consider an organization's small size as one factor in assessing
whether its operations are substantial enough to support a manager." Family, Inc. v. Us. Citizenship and
Immigration Services, 469 F.3d 1313, 1316 (9 th Cir. 2006) (citing with approval Republic of Transkei v. INS,
923 F.2d 175,178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, the reasonable needs of the
petitioner will not supersede the requirement that the beneficiary be "primarily" employed in a managerial or
executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.c. §
1l01(a)(44). Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will
primarily perform managerial or executive duties, and the petition may not be approved for that additional
reason.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed abroad
in a managerial or executive capacity.
The petitioner described the beneficiary's duties abroad in the Form 1-129 as "manager marketing of the
company, he formulates long & short term strategies, negotiate contracts, hire & fire employees, participate in
trade shows."
The petitioner also submitted an organizational chart for the foreign employer. The chart shows the beneficiary
reporting to the chief executive officer and as supervising directly or indirectly six employees.
Upon review, the petitioner failed to establish that the beneficiary was employed abroad in a "managerial" or
"executive" 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 on a day-to-day basis. The fact
that the petitioner gave the beneficiary a managerial title and prepared a vague job description which includes
inflated job duties does not establish that the beneficiary actually performed managerial duties. Once again,
specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. Going on record without
EAC 06249 50312
Page 10
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.
Furthermore, as the record is devoid of evidence addressing the duties or skill levels of the subordinate
employees abroad, it is impossible to determine whether the beneficiary was relieved of the need to perform non­
qualifying tasks and whether he supervised and controlled the work of other supervisory, managerial, or
professional employees. In view of the above, it appears that the beneficiary performed the tasks necessary to
produce a product or provide a service, was a first-line supervisor, or was a combination of both. An
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not
considered to be "primarily" employed in a managerial or executive capacity. See sections 101 (a)(44)(A) and
(B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 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 ofChurch Scientology International, 19 I&N Dec. at 604.
Accordingly, the petitioner has failed to establish that the beneficiary was employed abroad in a managerial or
executive capacity, and the petition may not be approved for this additional reason.
The initial approval of an L-IA new office petition does 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). 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 291 of the Act, 8 U.S.C. § 1361.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afJ'd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on 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. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.