Matter of S&PW-, LLC, ID# 100132 (AAO Nov. 14, 2016) IV Denial Not Estopped Due To Prior NIV Approval
MATTER OF S&PW-, LLC
APPEAL OF TEXAS SERVICE CENTER DECISION
Non-Precedent Decision of the
Administrative Appeals Office
DATE: NOV. 14, 2016
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER
The Petitioner, which describes its business as "Property Management and Investments," seeks to
permanently employ the Beneficiary as its president under the first preference immigrant classification
for multinational executives or managers. See Immigration and Nationality Act (the Act)
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to
permanently transfer a qualified foreign employee to the United States to work in an executive or
The Director, Texas Service Center, denied the petition, concluding that the evidence of record did not
establish that the Petitioner will employ the Beneficiary in the United States in a managerial or
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by not
giving consideration to the Beneficiary's prior L-1A nonimmigrant status. The Petitioner maintains that
these approvals constitute USCIS recognition and affirmation of the Beneficiary's eligibility. The
Petitioner also stated that the Director erred in finding that the Petitioner did not provide enough
information about the Beneficiary's job duties.1
While the appeal was under review, we issued a notice ofintent to dismiss (NOID) the petition based on
additional information that has since come to light. We have received the Petitioner's response and
have taken it into consideration in rendering our decision.
Upon de novo review, we will dismiss the appeal.
I. LEGAL FRAMEWORK
Section 203(b) ofthe Act states in pertinent part:
We note that the Petitioner devotes much of the appellate brief to a discussion of the Beneficiary's previous employment
with the Petitioner's foreign parent company. While the Director addressed this issue in his request for evidence, the Director
did not base the denial on the Beneficiary's foreign employment, and therefore we need not discuss the portions ofthe appeal
that relate to that employment.
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(1) Priority Workers.- Visas shall first be made available ... to qualified immigrants who
are aliens described in any of the following subparagraphs (A) through (C):
(C) Certain multinational executives and managers. An alien is described in this
subparagraph if the alien, in the 3 years preceding the time of the alien's
application for classification and admission into the United States under this
subparagraph, has been employed for at least qyear by a firm or corporation or
other legal entity or an affiliate or subsidiary thereof and the alien seeks to
enter the United States in order to continue to render services to the same
employer or to a subsidiary or affiliate thereof in a capacity that is managerial
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classifY a
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor
certification is not required for this classification.
The regulation at 8 C.F.R. § 204.5(j)(3) states:
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager
must be accompanied by a statement from an authorized official of the
petitioning United States employer which demonstrates that: ·
(A) If the alien is outside the United States, in the three 'years immediately
preceding the filing of the petition the alien has been employed outside
the United States for at least one year in a managerial or executive
capacity by a firm or corporation, or other legal entity, or by an affiliate
or subsidiary of such a firm or corporation or other legal entity; or
(B) If the alien is already in the United States working for the same
employer or a subsidiary or affiliate of the firm or corporation, or other
legal entity by which the alien was employed overseas, in the three years
preceding entry as a nonimmigrant, the alien was employed by the entity
abroad for at least one year in a managerial or executive capacity;
(C) The prospective employer in the United States is the same employer or a
subsidiary or affiliate of the firm or corporation or other legal entity by
which the alien was employed overseas; and
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(D) The prospective United States employer has been doing business for at
least one year,
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY
The Director denied the petition based on a finding that the Petitioner did not establish that it will
employ the Beneficiary in a managerial or executive capacity.
Section 101(a)(44)(A) ofthe 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 ~;ontrols 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
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 ofthe organization.
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If staffing levels are used as a factor in determining whether an individual is acting in a managerial
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account
the reasonable needs of the organization, in light of the overall purpose and stage of development of
the organization. See section 101(a)(44)(C) ofthe Act.
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates
that the Beneficiary is to be employed in the United States in a managerial or executive capacity.
The statement must clearly describe the duties to be performed by the Beneficiary.
The Petitioner filed Form 1-140 on January 13, 2015. On the Form I-140, the Petitioner indicated
that it had five current employees in the United States.
A. Original Staffing Claims
As a threshold issue, we will discuss the information in the NOID that USCIS issued to the
Petitioner, because the information in that notice has an effect on how we view the totality of the
evidence of record. To put this information in context, we begin with a discussion of the Petitioner's
initial description ofthe company's staffing.
' The Petitioner submitted an organizational chart, showing four employees, with a fifth position open,
and several contractors: ,/
Accountant General Manage:r--- Lawyer
(Independent Contractor) (Independent Contractor)
Business Developer Administrative Assistant
Sales & Marketing
(Equity Office Solutions, Independent Contractor)
The chart shows the general manager as the intermediary between the Petitioner and all other
subordinates. The Petitioner's employee handbook indicates that the general manager is responsible for
personnel matters such as hiring and discipline. The Beneficiary's own job description contains several
references to the general manager, indicating, for example, that the Beneficiary "oversees the
management of the company's real estate properties by ensuring that the General Manager resolves
commercial tenant's problems such as maintenance, contract services, collection procedures, and
emergency repairs in a timely fashion."
Throughout this proceeding, the Petitioner has identified its general manager as
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The Petitioner also submitted job descriptions for the four subordinates listed on the organizational
chart, including the still-vacant property manager position:
• Responsible for managing the administrative function of the company's leasing
• Responsible for managing the retail centers and leasing properties;
• Responsible for supervising the work of another professional employee (the
Administrative Assistant, who has a university degree) in reference to the
administration ofthe retail center leasing and operations ofthe business;
• Responsible for supervising the Administrative Assistant with accounts payable
and accounts receivable;
• Responsible for maintaining contact with the retail center tenants and for
negotiating contracts which have to be approve[d] by the President;
• Supervise other independent contractors and vendors to ensure quality service to
satisfy the tenants;
• Assist the President in formulating company policies and procedures; and
• Prepare activity reports ofthe business operations to present to the President.
• Responsible for Accounts Receivable and Accounts Payable;
• Responsible for assisting the General Manager with the administration and
management ofthe retail center and the other commercial properties;
• Responsible for payroll and bookkeeping;
• Responsible for answering the phones, making calls and for other forms of
• Responsible for assisting the General Manager and commercial brokers in filling
out lease contracts.
• Establish rental rate by surveying local rental rates, calculate overhead costs,
depreciation, taxes, and profit goals;
• Attract tenants by advertising vacancies, obtain referrals from current tenants, and
explain advantages of location and services;
• Contract with tenants by negotiating leases;
• Direct the collection ofrents and security deposits and payment of bills;
•. Maintain property by investigating and resolving tenant complaints; enforcing
rules of occupancy; inspecting vacant units and completing repairs, and planning
• Maintain building systems by contracting for maintenance services, and
• Secure property by contracting with security patrol service, and installing and
maintaining security devices;
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• Enforce occupancy policies and procedures by confronting violators;
• Prepare reports by collecting, analyzing, and summarizing data and trends; and
• Assisting the President in selecting commercial brokers in order to purchase and
lease commercial properties.
• Identify investment opportunities by researching different industries and related
events, publications, and announcements;
• Locate or propose potential business deals by contacting potential partners;
• Screen potential business deals by analyzing market strategies, deal requirements,
terms, and financials;
• Develop negotiating strategies and positions by studying integration of new
ventures with company strategies and operations;
• Close new business deals by coordinating requirements; _
• Protect organization's value by keeping information confidential; and
• Update job knowledge by participating in educational opportunities; reading
professional publications and maintaining personal networks.
The record shows that the Petitioner owns commercial properties in Texas.
Also, the Petitioner holds minority interests in and
each of which own commercial properties. At the time the Petitioner filed the petition, there were
active leases for the Petitioner's property in and the prop~rty owned by The remaining
sites were still under development or negotiation at the time of filing. Office lease agreements for
tenants of the property indicate that the Petitioner does not collect rental payments directly.
Instead, a management company called collects those payments. This
appears to be the same company identified on the organizational chart as '
lease agreements identify another third party property management company,
B. Site Investigation and NOID
In previously filed nonimmigrant petitions, the Petitioner indicated that it operates a cattle ranch. The
Petitioner's 2013 IRS Form 1120, U.S. Corporation Income Tax Return, which was the Petitioner's
most recent tax return when it filed the Form I-140 petition, did not reflect any real estate activity.
Instead, the Petitioner claimed a loss under "gross farm income" and reported all salaries paid as "Farm
Wages." The information submitted with Form I-140, however, did not mention ongoing farming
activity, and the above-referenced employee job descriptions did not include duties relating to farming
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USers officers visited various sites related to the Petitioner and the Beneficiary? They attempted,
without success, to contact the Petitioner in person and by telephone at its business office location
during normal' weekday business hours. The visiting officers concluded that the company is minimally
active, has no need for full time employees, and is not involved in the day-to-day operations of a
property management company such as collecting rent and providing maintenance services to rental
In addition, USeiS officers determined that identified as the Petitioner's general
manager, works on a ranch that trains cutting horses. The ranch is in Texas, over 100 miles
east of the Petitioner's address of record in She told USCIS that she occasionally does
paperwork for the Petitioner, but the available evidence indicates that her primary contact with the
Beneficiary is working with horses owned by the Beneficiary's family. There is no credible evidence
that she has worked as the Petitioner's general manager, with the duties listed in the submitted job
description. Because the Petitioner has described the general manager as a central figure in
coordinating the company's property management and real estate business activity, the above
information has serious implications for the credibility and reliability of the Petitioner's claims
regarding its business, including its claims regarding the duties performed by the Beneficiary and its
We issued a notice ofintent to dismiss (NOID) based on the above information. We stated:
It appears that the Beneficiary's principal activity is horse ranching, rather than real
estate management. While your company has invested in a small number ofcommercial
properties, a separate management company, rather than your employees, handles the
management of those properties. This information contradicts the information that you
have provided regarding the company's principal business activities; the Beneficiary's
primary role with your company;·and role as general .manager of your
The regulation at 8 C.F.R. § 204.5G)(5) requires you to clearly describe the
Beneficiary's intended duties with your company. The job description you submitted
relies upon certain information regarding the nature of your company's business
activities and the roles of its employees. USCIS' field research indicates that this
information is not correct, and therefore cannot form a valid basis for granting
immigration benefits. We cannot approve the petition unless the infonnation provided
with that petition is true. See section 204(b) ofthe Act, 8 U.S.e. § 1154(b).
The Department of Homeland Security and USCIS have the right to verify any information the Petitioner submits to
establish eligibility for the claimed immigration benefit. The legal right to verify this information is conferred by
8 U.S.C. §§ II 03, 1155, 1184, and 8 C.F.R. parts I03, 204, 205, and 214. "
Matter ofS&PW-, LLC
The Petitioner's response to the NOID does not address many of the key issues we raised in that notice.
The Petitioner submits a letter from the local post office, referring to problems with mail delivery, but
this does not explain why no one answered the telephone or the door when USCIS officers repeatedly
attempted to contact the Petitioner directly. We did not dispute the Petitioner's ongoing rental of the
space, and therefore the Petitioner's response that it "has been renting this location since 2010 without
any break" does not address our concerns about the Petitioner's business activity.
In an affidavit, the Beneficiary states: "I did not disclose our horse-related farm operations [in the
petition] because I was under the mistaken belief that our horse-related activities were not relevant for
immigration purposes." Eligibility rests, in part, on the Beneficiary's activities on behalf of the
petitioning U.S. employer. If the horse ranch belongs to the Beneficiary personally, rather than to the
Petitioner, then the Beneficiary is correct that the ranch activity cannot establish eligibility because it
does not relate to the Petitioner's business. If, however, the horse ranch is part of the petitioning
entity's business activity, then its omission from the petition is highly relevant because it would mean
that the Petitioner provided an incomplete, and therefore inaccurate, picture of its business activity.
The Petitioner had previously stated that its general manager, is a full-time employee,
"[r]esponsible for managing the retail centers and leasing properties," "supervising the work of ...
the Administrative Assistant," and "[s]upervis[ing] other independent contractors and vendors,"
among several other duties. As shown above, inquiries by USCIS officers did not support any of
these claims. The Petitioner's response to the NOID does not address this major issue. Therefore,
the Petitioner's entire claimed personnel structure (consisting mostly of the
Beneficiary, and the Beneficiary's immediate family) is suspect. See Matter of Ho, 19 I&N Dec.
582, 591 (BIA 1988).
Most ofthe Petitioner's response to the NOID consists ofdeeds, leases, and other documents relating to
the Petitioner's ownership of commercial rental properties. Responding to our finding that the
Petitioner "has invested in a small number of commercial properties," the Beneficiary states: "Two
million dollars is not a small' amount of money." In the NOID, we referred to the "number of
commercial properties," not to the value of those properties. When the issue is how much time and
effort·the Petitioner devotes to property management, the number of properties is more relevant than the
price the Petitioner paid for those properties.
The NOID response shows that the Petitioner purchased several properties in 2016, more than a year
after the petition's filing date of January 13, 2015. The Petitioner must establish eligibility at the time
of filing the petition. 8 C.F.R. § 103.2(b)(1 ). USCIS cannot properly approve the petition at a future
date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of
Katigbak, 14 I&N Dec. 45, 49 (Reg'! Comm'r 1971). We note that several of the properties discussed
in the NOID response are held not by the Petitioner directly, but by partnerships in which the Petitioner
holds a minority interest. At the time of filing, the Petitioner directly owned one property in
and one property in and only the property was under lease.
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The record amply establishes that the Beneficiary has invested heavily in commercial real estate, at
least partly through the petitioning company. Ownership of investment properties, however, is not
enough to establish the Beneficiary's eligibility as a multinational manager or executive. On Form
I-140, the Petitioner identified its type of business as "Property Management and Investments." The
Petitioner stated that the Beneficiary "oversees the management of the company's real estate
properties by ensuring that the General Manager resolves commercial tenant's problems such as
maintenance, contract services, collection procedures, and emergency repairs in a timely fashion." The
record does not support these foundational claims. The Petitioner has not established that the
general manager performs these duties, and therefore the credibility of both her job description and
the Beneficiary's job description, as well as the nature of the Petitioner's business activities, is in
A new letter from confirms that the Beneficiary "hired to manage his property . . . in
Texas," and that' also manages his other properties." does not appear
to perform any of the responsibilities listed in the general manager's job description, and the letter
from does not indicate that the Beneficiary or any of the Petitioner's employees actively
exercise managerial authority over functions or employees.
We note that the Petitioner's organizational chart mentioned but only in the context of "Sales
& Marketing" and property maintenance. The Petitioner indicated that it handled property
management in-house, consistent with the company's self-identification as a property management
company. If has been handling the Petitioner's property management functions, as the letter
indicates, then the organizational chart and job description contained incorrect and/or incomplete
information regarding that company's role.
The NOID response includes copies of the Petitioner's profit and loss statements for 2013-2015. The
statements are either inaccurate or incomplete, because they do not reflect expenses shown elsewhere in
the record. The itemized lists of expenses do not include salaries, wages, or payroll expenses; the only
expense higher than $11,000 in any year was property taxes on the Petitioner's holdings. This
document, therefore, does not reflect that the Petitioner had any employees in 2013, 2014, or when it
filed the petition in 2015. The Petitioner, however, had previously submitted copies ofiRS Forms W-2,
showing that the company paid over $100,000 per year in wages and salaries in both 2013 and 2014.
We also note that, according to a new letter from the Petitioner's accountant, the Petitioner's estimated
2015 income was $159,892 for "Farm," and $141,650 for "Rental." The profit and loss statement for
the same year, however, states the Beneficiary's rental income as $126,709.96, and does not refer to
farm income at all. The Petitioner does not explain why these figures are not consistent. The
accountant's letter sheds no light on the matter, saying only that "several errors were found" in the
Petitioner's 2014 income tax return, which the Petitioner has not submitted. The Petitioner's
submission of significantly divergent financial information raises further questions about the reliability
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Section 204(b) of the Act, 8 U.S.C. § 1154(b), provides for the approval of immigrant petitions only
upon a determination that "the facts stated in the petition are true." False, contradictory, or
unverifiable claims inherently prevent a finding that the petitioner's claims are true. See Anetekhai
v. INS., 876 F.2d 1218, 1220 (5th Cir. 1989); Systronics Corp. v. INS., 153 F. Supp. 2d 7, 15
(D.D.C. 2001); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988).
When examining the executive or managerial capacity of a given beneficiary, we will look first to
the petitioner's description ofthe job duties. See 8 C.F.R. § 204.5(j)(5). 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 in a managerial or executive capacity. !d. .
Beyond the required description of the job duties, USCIS reviews the totality of the record when
examining the claimed managerial or executive capacity of a beneficiary, including the company's
organizational structure, the duties of a beneficiary's subordinate employees, the prese~ce of other
employees to relieve a beneficiary from performing operational duties, the nature of the business,
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a
For the reasons discussed above, we cannot conclude that the Petitioner has provided complete and
accurate information about the Beneficiary's proposed duties, the petitioning company and its staff. We
do not doubt that the Beneficiary exercises authority over the petitioning company; however, there are
too many unresolved inconsistencies in the record to allow us to determine what duties he actually
performs, such that we can conclude that his duties are primarily managerial or executive in nature.
Further, the Petitioner has not responded to our initial finding in the NOID that it appears that the
Beneficiary's principal activities relate to horse ranching rather than real estate management. The
Beneficiary's statement that he did not believe that the horse-related activities are relevant does not
resolve the issue of what tasks he performs related to that business and what proportion of his duties are
actually allocated to the horse ranch.
The Petitioner has not met its burden of proofto show that it is a property management and investment
company with sufficient organizational complexity to warrant the employment of a general manager
who coordinates major property management functions, or that the Beneficiary would be employed
primarily as a manager or executive overseeing the business through that general manager.
C. Approval of Prior Nonimmigrant Petitions
On appeal, the Petitioner submits copies of documents from previous nonimmigrant petitions filed
on the Beneficiary's behalf. The Petitioner argues that the approval of those petitions establishes
that the Beneficiary qualifies as a multinational manager or executive, and that the Director did not
explain why this petition did not produce the same outcome. The Petitioner also maintains that the
"failed to identify the legal and factual grounds upon which the denial was based and
failed to consider the totality ofthe evidence presented."
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The Petitioner states:
While·an agency has broad discretion in the granting or denying of a visa a Court shall
reverse the decision where it is arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with the law. See e;g., Omni Packaging, Inc. v. INS, 733 F. Supp.
500, 504 (D. P.R. 1990); accord Louisiana Philharmonic Orchestra v. INS, 44 F. Supp.
2d 800, *7 (E.D. La.); accord Khamisani v. Holder, 2011 U.S. Dist. LEXIS 34962, *8
(S.D. Tex. Mar 31, 2011).
The Petitioner cites Omni Packaging, Inc. v. INS to support the proposition that denial of an immigrant
petition, following the approval ofnonimmigrant petitions with comparable requirements, is an abuse of
discretion without a specific explanation as to how the previous approvals were in error. The Petitioner
does not, however, note that the court in Omni Packaging revisited the issue and later determined that
the Immigration and Naturalization Service (USCIS's predecessor agency) had properly denied the
immigrant petition and that it was not estopped from finding that the alien was not manager or executive
after having determined that he was manager or executive for purposes of issuing an L-1 visa. See
Omni Packaging, Inc. v. INS, 930 F. Supp. 28 (D.C.P.R. 1996).
As in Omni Packaging, the initial court decision in Louisiana Philharmonic did not order the approval
ofthe immigrant petition, but instead remanded the matter for further review. The denial ofthe petition
remained in place and was affirmed by higher courts. Louisiana Philharmonic Orchestra v. INS, 2000
WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
In Khamisani, the Court ruled in the government's favor, granting summary judgment with prejudice
because "the record does not disclose a material fact issue." Khamisani v. Holder, 2011 WL 1232906,
at *7 (S.D. Tex. Mar. 31, 2011).
None of the cited cases held that it is necessarily arbitrary, capricious, or an abuse of discretion to deny
an immigrant petition for a multinational manager or executive when the beneficiary has previously
been granted an analogous noninimigrant status. USCIS must explain the grounds for denial, but the
prior approval of L-lA nonimmigrant status does not create a presumption of eligibility or shift the
burden ofprooffrom the Petitioner to USCIS.
Furthermore, notwithstanding the findings from the USCIS site visits, the Petitioner's own petition
documents show a material change in the nature of the Petitioner's business. Copies of previous
nonimmigrant petition materials show that, when the Petitioner first filed a Form 1-129, Petition for a
Nonimmigrant Worker, in 2011, the Petitioner previously held itself out as a "Property Management
and Cattle Business," operating a feedlot on a ranch personally owned by the Beneficiary (not by the
petitioning company). As recently as 2013, as the Petitioner's IRS Form 1120 tax return attests, the
Petitioner derived its income entirely from farming (relating to its operation of a cattle feed lot); it
owned commercial properties but did not report the collection of any rent that year. In the Form I-140
immigrant petition, none of the job descriptions show any involvement with the"Beneficiary's ranch or
livestock business. Therefore, the petitions do not all reflect identical circumstances, as the Petitioner
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claims on appeal. As we have already discussed, there is reason to question the Petitioner's description
ofits current business, and therefore the exact role ofanyone it employs, including the Beneficiary.
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that
i,t seeks to employ the Beneficiary in a managerial or executive capacity in the United States.
The petition will be denied and the appeal dismissed for the above reason. In visa petition
proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner.
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here,
that burden has not been met.
ORDER: The appeal is dismissed.
Cite as Matter ofS&PW-, LLC, ID# 100132 (AAO Nov. 14, 2016)