dismissed L-1A Case: Web Technology

U.S. Department of Homeland Sec~rrity 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
rdentif YL+- *A ubfiuadl tab U. S. Citizenship 
prevent dearly unwarrantea and Immigration 
invasion of wrsonal privacy 
FILE: 
 SRC 04 19 1 5 1720 
 OFFICE: TEXAS SERVICE CENTER 
 Date: SE P 0 5 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
..Robert P. Wiemann, ~&f 
/ Administrative Appeals Office 
SRC 04 191 51720 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1 lOl(a)(lS)(L). The petitioner, a Florida corporation, states that it is engaged in the 
rovision of web-based technology design and construction services. It claims to be an affiliate of - 
-located in Kilmarnock, United Kingdom. The beneficiary was initially granted a one-year 
period in L-1A status in order to open a new office in the United States, and the petitioner now seeks to 
extend the beneficiary's stay for a three-year period. 
The director denied the petition concluding that the petitioner had not established: (1) that the beneficiary 
would be employed in a primarily managerial or executive capacity; or (2) that the U.S. company has been 
doing business for the previous year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that the director erred in 
finding that the beneficiary would not be employed in a qualifying capacity. Counsel emphasizes that the 
beneficiary occupies the highest position within the hierarchy of the business, and does not engage in the 
actual performance of services provided by the company. Counsel submits a brief and additional evidence in 
support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. 5 214.2(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 
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 
SRC 04 191 51720 
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education, training and employment qualifies hidher 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. 5 214.2(1)(14)(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 first issue in this proceeding is whether the petitioner established that the beneficiary would be employed 
in a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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 
SRC 04 191 51720 
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(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. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means 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 nonimrnigrant visa petition was filed on July 1, 2004. In an appended letter dated June 27, 2004, the 
petitioner submitted the following description of the beneficiary's duties as president: 
Setting up, developing and managing start up operations 
Developing and creating new business markets 
Interviewing, selecting and supervising sub-contractors for the business including site 
supervisors, painters, carpenters, etc. 
Creating, implementing and overseeing all internal company policies per US standard 
guidelines 
Developing marketing strateges for the business 
Developing and overseeing all internal human relations policies for the business per US 
labor laws 
Obtaining competent legal and accounting firms for the business enterprise 
Insuring that all local and federal taxed [sic] and licensing fees are paid in a timely 
fashion 
Developing advertising strategies and customer service policies for the business 
[The beneficiary] supervises one site supervisor who is employed as an individual contractor. 
The site supervisor oversees one painter, one dry wall installer, one mason, two carpenters 
and one general maintenance worker, all of whom are employed by the business as 
independent contractors. 
SRC 04 191 51720 
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The petitioner attached a separate statement listing all independent contractors by name and job title, and 
provided a brief job description for each worker. The petitioner submitted letters from five of the seven 
contractors, each of whom confirmed providing contracting services for the petitioning company. 
The director issued a request for additional evidence on July 17, 2004, in part instructing the petitioner to 
submit the following: (1) a definitive statement describing the beneficiary's employment including a list of all 
duties and the percentage of time spent on each duty; (2) a list of employees supervised by the beneficiary and 
a brief description of their job titles, educational background and duties: (3) an explanation of who provides 
the product saleslservices or produces the product of the business; (4) an organizational chart for the U.S. 
entity; (5) copies of the U.S. company's quarterly tax returns for the past four quarters; and (6) copies of IRS 
Forms 1099 for all contract employees, along with receipts, bills and other documentation to establish salaries 
being paid to contract employees, the number of hours they work, and their job titles. 
In an October 15, 2004 response, the petitioner indicated that the beneficiary allocates approximately 25 
percent of his time to "working on the infrastructure" for the petitioner's proposed information technology 
services business and the remaining 75 percent of his time to overseeing the operations of the company's 
"remodeling and home improvements division." The petitioner provided the following detailed account of the 
beneficiary's duties: 
Developing and creating new business markets, including soliciting new business and 
maintaining contacts with existing customers. [The beneficiary] spends approximately 
30% of his time on these duties. 
Interviewing, selecting and supervising sub contractors [sic] for the business including 
site supervisors, painters, carpenters, etc. [The beneficiary] spends approximately 15% of 
his time with these duties. 
Creating, implementing and overseeing all internal company policies per US guidelines. 
[The beneficiary] spends approximately 5% of his time on these duties. 
Developing marketing strategies for the business enterprise including seeking out new 
advertising venues, etc. [The beneficiary] spends approximately 10% of his time with 
these duties. 
Developing and overseeing all internal human resources policies for the business per US 
labor laws, including meeting with accountants to determine rate of pay, working with 
insurance agents to insure that all projects and workers are insured, etc. [The beneficiary] 
spends approximately 15% of his time on these duties. 
Obtaining competent legal and accounting firms for the business enterprise. [The 
beneficiary] spends approximately 1% of his time on these duties. 
Insuring that all federal, state and local taxes are paid in a timely fashion. [The 
beneficiary] spends approximately 9% of his time with these duties. 
Developing customer service policies for the business enterprise including follow up calls 
to insure that all jobs are completed properly and in a timely fashion as well as receiving 
feedback from customers to determine what areas may need improvement. [The 
beneficiary] spends approximately 15% of his time on these duties. 
The petitioner provided an organizational chart identifying the beneficiary as president over a subcontracted 
site supervisor, who in turn supervises six contracted workers who provide general maintenance, carpentry, 
SRC 04 191 51720 
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aluminum installation, masonry, concrete finishing, painting, drywall and interior decorating services. The 
petitioner submitted copies of IRS Forms 1099 issued to six subcontractors in 2003. The petitioner also 
submitted an income statement indicating that the company had paid $18,539.56 to subcontractors during the 
first nine months of 2004. 
The director denied the petition on December 15, 2004, concluding the beneficiary would not be employed in 
a primarily managerial or executive capacity under the extended petition. The director referenced the 
beneficiary's job description, and concluded that the listed duties did not establish that he will perform the 
high-level duties contemplated by the statutory definitions of managerial and executive capacity. The director 
acknowledged the petitioner's use of subcontracted workers but observed that the petitioner did not employ 
any subordinate staff members who would perform the day-to-day, non-managerial operations of the 
company on a full-time basis. The director found that the sub-contracted personnel are not employed in 
professional positions, and further noted that the petitioner had not submitted evidence to substantiate that the 
petitioner maintains control over the outside employees' job performance, or that the U.S. company maintains 
formal agreements or contracts with the subcontractors to manage the functions of the business. 
On appeal, counsel for the petitioner asserts that the director's denial is erroneous because the beneficiary: 
"occupies the highest position within the hierarchy of the US business;" manages its staff, including the site 
supervisor; exercises overall discretion in the day-to-day operations of the business; and "does not engage in 
the actual performance of the services offered by the company." Counsel further notes that the beneficiary 
served at the highest level of the foreign organization, and receives the highest salary within the U.S. 
organization, and asserts therefore, the beneficiary "obviously qualifies as a manager." 
Counsel further describes the beneficiary's role as follows: 
He manages the overall operations of the business enterprise including all aspects of 
advertising, purchasing of supplies, and creating financial goals and budgets for the business 
enterprise. . . .[The beneficiary] currently supervises the site supervisor, whose job it is to 
inspect and supervise the work being done on the various projects that the company has on- 
going at any given time. The site supervisor is responsible for daily inspections of the work 
being done and reports directly to [the beneficiary] at least two times daily.. . . . The site 
supervisor has the authority to make minor changes on the job site, such as relocating an 
electrical outlet, etc., however all major decisions concerning each job are made by [the 
beneficiary]. 
Counsel asserts that the petitioner submitted sufficient evidence to establish the employment of independent 
contractors and the beneficiary's control over such employees, and indicates that the petitioner recently hired 
an "aluminum manager" and another aluminum installer as independent contractors. The petitioner submits an 
updated organizational chart showing a total of nine employees under the beneficiary's supervision. 
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary will be employed in a primarily managerial or executive capacity. 
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. 5 214.2(1)(3)(ii). The petitioner's description of the job 
SRC 04 191 51720 
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duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
in either an executive or a managerial capacity. Id. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties are related to operational or policy management, not to the 
supervision of lower-level employees or the performance of the duties of another type of non-managerial or 
non-executive position. 
The fact that the beneficiary manages a business does not necessarily establish eligbility for classification as 
an intracompany transferee in a managerial or executive capacity within the meaning of sections 
101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(15)(L) 
of the Act does not include any and every type of "manager" or "executive"). While the AAO does not doubt 
that the beneficiary exercises discretion over the petitioner's day-to-day operations and has the appropriate 
level of authority, the petitioner has failed to show that non-qualifying duties will not constitute the majority 
of the beneficiary's time. 
For example, the petitioner stated that the beneficiary devotes at least 25 percent of his time to developing the 
infrastructure necessary for the petitioner to move forward with its plans to operate an information technology 
services business in addition to its existing home remodeling services. The petitioner has provided no 
description of what specific efforts the beneficiary will take to "develop the infrastructure," nor has it 
indicated that any other employees are involved in this aspect of the petitioner's business, such that they 
would relieve the beneficiary from performing non-qualifying duties related to these activities. The AAO 
cannot conclude that the beneficiary's duties associated with infrastructure development would be managerial 
or executive in nature. 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)). 
The petitioner further indicated that the beneficiary allocates an additional 30 percent of his time to 
"developing and creating new business markets and maintaining contacts with existing customers," 10 percent 
of his time to "developing marketing strategies for the business. . . including seeking out new advertising 
venues," and 15 percent of his time "developing customer service policies," which includes follow up calls 
with customers and receiving feedback from customers. While these duties are described in vaguely 
managerial terms, the petitioner has not described the specific managerial or executive duties the beneficiary 
will perform with respect to the petitioner's sales, marketing, advertising and customer service functions, nor 
has it identified any lower-level employees who would perform non-managerial duties associated with these 
areas of the petitioner's business. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
SRC 04 191 51720 
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Further, the AAO notes that the duties of the contracted employees are limited to providing general 
contracting and remodeling services. Therefore, it is reasonable to assume, and has not been shown otherwise, 
that the beneficiary, as the petitioner's sole full-time employee, would be responsible for directly marketing 
and selling the company's services, devising marketing plans, contacting advertisers, and performing any 
customer service tasks, as well as performing other administrative tasks inherent in operating the business. 
Therefore, while the lower-level employees may perform the day-to-day duties associated with providing 
home remodeling services, the petitioner's focus on this one particular type of task is misplaced. Job duties 
performed in connection with a business' sales, marketing, purchasing, finances and general administration 
may be deemed non-qualifying if they involve the actual performance of the function. Based on the record of 
proceeding, the beneficiary's job duties are principally composed of non-qualifying duties that preclude him 
from functioning in a primarily managerial or executive role. 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" perfom the enumerated managerial or executive duties); see also Matter of Church Scientoloay 
Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 8 101(a)(44)(A)(ii) of the Act. The petitioner claims that the beneficiary 
supervises one managerial or supervisory employee, namely the site supervisor, who appears to be employed 
on an "as needed" contract basis. mle this employee may have supervisory authority over other contractors, 
the petitioner has indicated that the beneficiary devotes only approximately 15 percent of his time to 
supervising subordinates. Therefore, the small portion of his time devoted to supervising the "site supervisor" 
may be considered managerial in nature; however, the petitioner is still required to demonstrate that the 
beneficiary's duties as a whole are primarily managerial or executive. The fact that the beneficiary supervises 
one part-time supervisory employee is insufficient to establish that the beneficiary will be primarily 
performing managerial or executive duties. 
The AAO acknowledges that the petitioner claims to have hired an "aluminum manager" and an additional 
"aluminum installer" on a contract basis. However, the petitioner must establish eligibility at the time of filing 
the nonirnrnigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). The petitioner has not established that the beneficiary regularly or primarily supervised 
managerial or supervisory employees at the end of the company's first year of operations. 
Despite the petitioner's inability to show that the beneficiary primarily supervises managerial, supervisory or 
professional employees, the petitioner can still establish the beneficiary's eligibility by providing evidence 
that the beneficiary is a function manager. 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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 
5 1101(a)(44)(A)(ii). 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 provide a detailed job 
description that identifies the function with specificity, articulates the essential nature of the function, and 
establishes the proportion of the beneficiary's daily duties attributed to managing the essential function. 
SRC 04 191 51720 
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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. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1 9 8 8)). 
In this matter, the petitioner and counsel have emphasized that the beneficiary does not perform any 
construction or home remodeling duties and, therefore, assert that the beneficiary is relieved from performing 
non-qualifying functions. However, merely establishing that the beneficiary does not perform the petitioner's 
most essential function does not mean that the beneficiary is relieved from performing many of the other 
types of non-qualifying functions associated with the petitioner's business. At the end of the one-year period 
granted for the beneficiary to open the new office, the petitioner employed only the beneficiary as president, 
and utilized the services of an accountant for tax matters. As discussed above, the beneficiary himself would 
necessarily have performed all other duties associated with operating the petitioner's home remodeling and 
general contracting business, other than the actual remodeling services. The beneficiary's duties must have 
included selling and marketing the petitioner's services, communicating and negotiating with vendors and 
suppliers, addressing all customer-service related issues, and performing the company's day-to-day 
administrative and financial functions. While these duties may be crucial to the proper functioning of the 
petitioner's business, they are also the daily operational tasks and cannot be deemed managerial or executive 
in nature. 
On review, the evidence of record in this case does not establish that the beneficiary would be employed in a 
primarily managerial or executive capacity. While the AAO does not dispute the heightened degree of 
authority imparted upon the beneficiary as president and majorilty shareholder in the U.S. company, the 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Although counsel places great 
emphasis on the fact that the petitioner has hired a number of independent sub-contractors to carry out one of 
its essential functions, the fact remains that the beneficiary continued to perform other daily operational tasks, 
which are equally as non-qualifying as the actual provision of services. 
The regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to support an executive or managerial position. There is no provision in 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 ineligble by regulation for an extension. In the instant matter, the petitioner has not 
reached the point that it can employ the beneficiary in a predominantly managerial or executive position. For 
this reason, the appeal will be dismissed. 
The second issue in this matter is whether the petitioner established that the U.S. entity has been doing 
business for the previous year, as required by 8 C.F.R. 8 214.2(1)(14)(ii)(B). The regulation at 8 C.F.R. 
214.2(1)(l)(ii)(H) defines "doing business" as the regular, systematic and continuous provision of goods and 
lor 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. 
SRC 04 191 51720 
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The beneficiary was initially granted a one-year period in L-1A status beginning on July 8, 2003 and ending 
on July 7, 2004. In support of the instant petition, the petitioner submitted copies of advertisements, business 
licenses, its financial statement for the fiscal year ended on March 31, 2004 showing over $81,000 in 
turnover, and copies of four invoices for services rendered, dated in February, March, April and May 2004. 
In her July 17, 2004 request for evidence, the director requested that the petitioner submit evidence that the 
company has been doing business for one year, includmg copies of bank statements, payroll records, invoices, 
sales records, bills of sale, shipping receipts, and orders for goods or services. 
In response, the petitioner re-submitted the above-referenced invoices, along with copies of ten service 
contracts dated in July and August 2004, along with copies of IRS Forms 1099 issued to its contractors for the 
2003 year, and an income statement for the first nine months of 2004 showing total income of $63,281. 
The director denied the petition on December 17,2004, concluding that the petitioner had not established that 
the U.S. company was doing business for the previous year. 
On appeal, counsel asserts that the petitioner "previously submitted extensive documentation showing that the 
US entity has been doing business." The petitioner submits new and previously submitted evidence in support 
of the appeal, including: the above-referenced invoices dated February 2004 through May 2004; service 
contracts dated November 2004 through January 2005; monthly bank statements dated from July 2003 
through December 2004; receipts for purchases dated June through December 2004; advertisements for the 
petitioner's business dated September 2003 and April 2004; and a letter from a local Florida newspaper 
confirming that the petitioner has advertised with its publication since July 2003. 
Upon review, the AAO finds sufficient evidence to establish that petitioner has been doing business as 
required by the regulations. Although the record does not contain sales contracts from 2003, the petitioner has 
submitted Forms 1099 for the 2003 year evidencing payments to contractors for services rendered during that 
year, bank statements showing monthly deposits consistent with the income reported on the company's 2003 
financial statements, and evidence that it has been actively advertising the company's services since the initial 
petition was approved. The petitioner's invoices and service contracts suggests a steady increase in the level 
of business over the first year of operations. The director's decision with respect to this issue will be 
withdrawn. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.