dismissed EB-1C Case: Accounting

(b)(6)
DATE:NOV 0 7 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
AdJ)lini.strative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, · DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
~: ; 
( 
PETITION: .Irnrrtigrant Petition fpr Alien Worker as a Multinatipnal Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce ne"r constructions of law n6r establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or- if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Formi-290B) 
within 33 days of the date of this decision. Please review the Fotrn I-290B instructions .at 
http://www.uscis.gov/forms for the latest information on fee, filing location, ami otlter requirements. 
See also 8C.F.R. § 103.5. Do not file a motion directly ' with the AAO. 
(b)(6) NON-PREGEDENT DECISION 
Page2 
PJSCUSSION: The Director, Texas Service Center, denied the preference visa petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a texas professional association that seeks to employ the beneficiary as. its accounting 
director, Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant 
pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1l53(b)(l)(C), 
as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish: (1) that the beneficiary was 
employ~d abroad in a qualifying managerial or executive capacity; and (2) that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
On appeal counsel disputes the director's decision and submits a supporting appellate brief asserting that the 
petitioner submitted sufficient evidence to establish that the beneficiary's former employment abroad and his 
,Proposed employment with the U.S. petitioner meet tile statutory criteria for mane1gerial or executive capacity. 
I. TheLaw 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigraQ~s who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
I 
(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 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
~ee}(s 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 or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for Cl firQl, corporation o.r other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the Uriit~d States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is requited for this 
classification. The prospective employer in the United States must furnish a job offer in the fortn of a 
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statement which indicates that the alien is to be employed in the United States in a managerial ot executive 
capadty. Such a statement must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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, ot 
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 ate 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 <tCtivitY 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 superyisory duties unless the employees supervised are · 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 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; 
(il) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
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NON-PRECEDENT DECISION 
Page4 
(iv) receives only general supervision or direction from higher level executives, 
. the board of directors, or stockholders of the organization. 
Additionally, the regulations at 8 C.F.R. § 204.5(j)(3)(i) State that the petitioner must provide the following 
evidence in support of the petition in order to esUiblish eligibiljty' 
\ 
(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 aii 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 prece<;ling entry as a nonimmigrant, 
• I 
the alien wa,s employed by the entity abr()ad fQra,t l~ast one year in :,. rn_an~gerial 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 ot other legal entity by which the alien was 
employed oversea,s; and 
(D) The prospective United States employer has been doing business for at least one year. 
II. Procedural History 
The record shows that the petitioner filed the Form I-140 on ,June 7, 2012 and submitted a supporting 
statement dated May 2, 2012, which contained descriptions of the beneficiary's former and proposed 
employment. The petitioner 
Stated that the beneficiary's proposed position would teqtiire the beneficiary to 
··use information gained from examinin~, analyzing, and interpreting financial and accounting records in on:ler 
to formulate reports and advise the owner on· the subject of the company's operating procedures. The 
petitioner further stated that the beneficiary would oversee a staff of accounting and support personnel as well 
as invoicing assista:nts Within the a,ccounting department Such oversight would entail rn}tking sute tba.t the 
subordinates receive proper training in handling daily invoices and collections. The beneficiary would also 
set goals and set and implement policies within. the accounting department, maintain authority over personnel 
and operations, conduct quarterly reviews. of the subordinate staff, and determine whom to hire or fire within 
the department. The petitioner went on to discuss the beneficiary's subordinates for a second time within the 
same supporting statement, this time claiming that the beneficiary would oversee the work of two quality 
coordinators who were claimed to hold professional degrees and who oversee a staff of medical assistants and 
a receptionist. It is noted that the petitioner provided two sets of inconsistent facts with respect to the number 
anc:l types of subordinates the beneficiary would superv'ise. Additionally, the petitioner asserted that managing 
(b)(6)
NON-PRECEDENT DECISION 
Page5" 
t:lle accounting department is tantamount to managing an essential function and thus claimed that the 
beneficiary is both a personnel manager and a funct~on manager to the extent that the accounting department 
impacts the company's profit and operations and is therefore essential to the organization. 
Wi.th regard to the beneficiary's employment abroad, the petitioner provided a similar job description, 
claiming that the beneficiary examined, analyzed, and interpreted financial and accounting records to 
determine the company's financial status and operating procedures and to prepare reports in order to convey 
the necessary information to the company's owners. The petitioner claimed that the beneficiary managed a 
staff of accounting and support personnel as Well as invoicing assistants and exereis_ed discretionary authority 
over the goa_ls and policies within the accounting department. The pem~ficiary sii))jlarly conducted quarterly 
reviews of subordinates' performances and based 011" such assessments recommended various personnel 
actions, Including hiring, firing, or promotion of employees within the accounting department. 
Additionally; the petitioner provided a: number of wage, tax, and bank documents along with organizational 
charts perta_inillg to tbe petitioner and the beneficiary's former employer abroad. The petitjoner' s 
organizational chart shows the beneficiary's position as being directly subordinate to the general manager, 
who is subordinate to the company's president. The beneficiary is depicted as the director of the 
, . I . -·· . 
accounting/billing department, which is shown to include three quality coordinators and a receptionist. It is 
unclear which of these positions, if a:ny, could be cleemed as accounting personnel or iitv-oieing assistants, 
both of which the petitioner claimed would be the beneficiary's subordinates within the accounting 
department. The chart also shows not two, but three, quality coordinators and indicates that the beneficiary, 
rather that the quality coordinators, would oversee the work of the receptionist. Moreover, while the 
petitioner's supporting statement indicated that the quality coordinators would oversee the work of medical 
assistants, apci would thereby hold · supervisory positions, . tbe chart indkates that the petitioner's two 
physicians would oversee the physician and medical assistants. The chart makes no indication tbat tbe quality 
coordinators would oversee the work ofany subordinate employees. 
It is incumbent upon the petitioner provide independent objective evidence in order to resolve· any 
inconsistencies in the record. 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 of Ho, 19 I&N 
Dec. 582, 591--92 (BIA 1988), The inconsistencies described above contribute to the AAO's incomplete 
understanding of the petitioner's organization ancl t_he benefici_ary's plac;elllent therein, as tbe beneficiary's 
position must be reviewed within the scope of the petitioner's overall organization, particularly in light of the 
individjlal_s whO are claimecl to be the beneficiary's subordinates. 
Looking to the foreign entity's. organizational chart, the AAO observes that only position titles were provided. 
The beneficiary's p()sition of accounting director was depic;ted as overseeing the work of a digitations 
assistant, an accounting assistant, an invoicing assistant, support personnel, a phone assi_stanh a file assistant, 
an "AIR assistant," and a customer serv~ce assistant. The AAO·notes that despite the fact that the petitioner 
provided virtually identical job descriptions pertaining to the beneficiary's positions with the foreign and U.S. 
employers, the beneficiary's supportstaff at each entity was almost entirely different, with the exception of 
(b)(6)
NON-PRECEDENT DECISION 
Page6 
the receptionist, who was shown as the beneficiary's subordinate in his proposed position with the, U.S. entity 
and would likely perform similar tasks as the phone and/or file assistant, who were identified as the 
beneficiary's subordinates in his former position with the foreign entity. 
After reviewing the petitioner's submissions, the director determined that the petition did not warrant 
approval. Accordingly, on February 5, 2013, the director issued a request for evidence (RFE) instructing the 
petitioner to provide, in part, supplementary job descriptions for the beneficiary's former and proposed 
employment. The director instructed the petitioner to list the beneficiary's specific daily job duties in both 
positions and to assign time allocations indicating the portion of time the beneficiary spent and would spend 
performing each of the listed job duties. Additionally, the director asked for the submission of both entities' 
organizationll.l charts depicting the beneficiary's respective positions within each entity as well as the 
positions. of the beneficiary's subordinates, their job duties, educational credentials, and an identification of 
each employee's full- or part-time employment status. 
The petitioner's response to the RFE included a statement dated March 11, 2013, which contained an hourly 
breakdown of the beneficiary's job duties and responsibilities in his proposed position With the U.S. entity. 
The petitioner claimed that the beneficiary would distribute his time in the following manner: 7 "9 boors 
.. 1 . 
weekly would be spent examining, analyzing, and interpreting financial and accounting records in order to 
assess the. company's financial status and advise the owner and he would prepare reports concerning 
operating procedures; 2-3 hours weekly. would be spent doing tax planni~g and preparing the petitioner's 
preliminary tax returns and period financial reports to be given to the CPA· and the petitioner's owner, 
respectively; 3-5 hours per week would be allocated to analyzing billing and collections trends to detellJline 
profitability and productivity and planning strategies for the billing 
and collections pro~esses; 20-24 hours per 
week would be allocated to overseeing staff to ensure their proper training in the handling of daily invoices 
and collections, preparing quarterly staff reviews, and making personnel decisions, including recruiting, 
11iring, and disciplinary actions; 2-3 hours would be spent monitoring the billing company's petforrrtance and 
facilitating communications between the billing company and the petitioner's patients; another J ·3 hours of 
the beneficiary's time would be spent attending meetings with insurance carriers to discuss changes in codes 
and/or procedl)tes a.n.cl to optimize the billing process; and the remaining 1-2 hours weekly would be spent 
ensuring the company's compliance with current legislation and implem~nt 'necessary changes to comply with 
any new legislation. 
The petitioner went on to' restate the beneficiary's role and discretionary authority in setting and 
implementing policies within the accounting department and overseeing the quality coordinators who are 
responsible for initiating and coordinating billing, timing, coding, and interfacing with insurance compl:lnies 
regarding patient procedures. The petitioner did not indicate that the beneficiary would oversee accounting 
and support personnel or invoicing assistants, as was indicated originally in one part of the petitioner's 
previously submitted supporting letter. 
Additionally, the petitioner maintained the latter claim that was made originally in the same supporting letter, 
indicating that the qu(llity coordinators oversee the Work of a receptionist and "several'' medical assistants. 
(b)(6)
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Although the petitioner complied with the director's request for an organizational chart, it provided the very 
same chart that was originally submitted in support of the petition. Thus, the anomalies concerning the 
. specific structural hierarchy within the accounting department remained without supporting evidence to 
establish that the quality coordinators, whom the beneficiary oversees, have their own subordinate staff as 
previously il:tdic(lted. Furthermore, while the petition~r provided documents establishing the educational 
credentials of one of the three quality coorciinators identified in the petitioner's cha,rt, no 
evidence was provided with regard to the two remaining individuals·. identified as quality coordinators. 
Moreover, Ms. educational d?Cuments showing that she received a medical degree in 2002 does not 
establish that her position of quality coordinator is that of a professional employee, as the petitioner provided 
no evidence or indication to estaplish tllat a medica.! degree is required or is even relevant to the billing and 
coding tasks that are inherent to the position she currently holds. While tbe record also shows tMt the 
petitioner provided evidence of educational cred_entials for two of the petitioner's six medical/pb.ysici(Ul 
assistants; this evidence is irrelevant to the matter at hand, as the neither individual is depicted as a 
subordinate of.the 
beneficiary or anemployee within the accounting 
department that the beneficiary heads. 
Next, a review ofthe recgrd shows that the petitioner provided a statement dated November 15, 2010 from the 
forei~ entity's legal representative, who included a general description of the beneficiary's prior employment 
with th~ foreign entity. The sta~ment recited all the same information that WCiS previously provided with 
regard to ~e beneficiary's employment abroad and did not include a listing of the beneficiary's specific daily 
job duties with an accompanying percentage breakdown. Failure to submit requested evidence thatprecludes 
' . 
a rtJa,teria_lline of inquiry shall be grounds for·denying the petition. 8 C.P.R.§ 103.2(b)(14). 
The petitioner also resubmitted the same organizational chart that was previoQsly provided without disclosing 
any names of the beneficiary's subordinates during his employment abroad. As such, while the petitioner 
provided a resume for the relevance of this document cannot be assessed 
beca~_se the petitioner ·provided no information that would indicate which position this individual occupied 
within the foreign entity's organization, whether her position was among those directly subordinate to the 
beneficiary, or whether she was even employed by the foreign entity at th¢ time of tile beneficiary's 
employment abroad . 
The director reviewed the petitioner's submissions and determined that the record lacked sufficient evidenc_e 
to establish that the beneficiary was employed abroad and would be employed in the United States in a 
QJJ<llifyipg ma,n:agerial or ex,¢cutive capacity. Accordingly, the director issued a decision dated May 29, 2013 
denying the petition. The director detenn'ined that the petitioner failed. to proVide a comprehensive job 
descrl.ption ofthe beneficiary's position abroad and further noted that based on the little information th(ltw~s 
provided, the beneficiary was carrying outaccounting tasks rather than tasks that are deemed as manageria,l or 
executive. Although the director acknowledged the hourly breakdown that the petitioner provided with 
regafd to the beneficiary's propos~d position with the petitioner, he found that the job description gave no real 
insigbt into the beneficiary's niamigerial capacity. . The director also found that the petitioner lacked 
orga11_iz.a,tion<1l complexity (lt the time of filing and. thus did not warrant the hiring of an employee who would 
prim(lrily perfonn job ciutjes within a man·agerial capacity. Additionally, turning to the petitioner's 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
organizational chart, the director determined that the petitioner did not provide sufficient evidence to establish 
that the beneficiary would oversee a staff of professional, managerial, or supervisory personnel. 
The petitioner subsequently filed a timely appeal seeking to reverse the director's decision. In support of the 
appeal, couns~l contends that the denial is based on the director's "erroneous conclusions of fact" (lnd a 
"lllis~pplicatiol) of the law." Counsel furtl).er states that the director failed to properly consider and assign 
probative value to relevant supporting evidence. Additionally, counsel offers an appellate brief, which will be 
discussed below. 
III. Analysis 
As indicated above, the two primary issues to be addressed in this proceeding require a review of the facts 
pertaining to the beneficiary former employment with the foreign entity and his proposed employment within 
the petitioning entity. Specifically, the AAO will review the record to determine whether the petitioner 
offered sufficient evidence to establish that the beneficiary was employed abroad and woUld be employed in 
the United States in a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, the AAO reviews the 
totality of the re<;:ord, starting fitst with the petitioner's description of the beneficiary' sjob duties. See, 8 C.F.R. 
§ 204.50)(5). As the director stressed in the RFE and later in his denial of the petition, a det::~.iled job 
description is crucial, as the duties themselves will reveal the true nature of the beneficiary's foreign and 
proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ff'd, 905 
F.2d 41 (2d. Cir. 1990). 
The beneficiary's job description can then be consid~red in light of other relevant factors, including (byt not 
limited to) job descriptions and size of the beneficiary's subordinate staff, the nature of the business conducted 
by the entity in question, and any other relevant facts that may contribute to a comprehensive understanding 
of the benefici;:tty's a<;:tual role within a given organization. Among these factors, a company's staffing is 
highly relevant and should be considered as a means of allowing USCIS to gauge the extent to which a given 
entity is able to relieve the beneficiary from having to carry out the company's daily operational tasks. In 
. • I 
reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that 
USCIS "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. U.S. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. 
Pt. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2dCir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is appropriate for USCIS to consider the size of 
the petitioning cornpany in conjunction with other relevant factors, Such as a company's small personnel size, 
the absence of employees who would perform the non-managerial or non~executive operations of the 
company, or a "shell company'' that does not conduct business in a regular and continuous manner. See, e.g. 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
(b)(6)
NON-PRECEDENt DECISION 
Page9 
Turning first to the beneficiary's prospective employment with the U.S. entity, the record shows a number of 
factual inconsistencies th<.it directly affect the job duties the beneficiary would perform in his proposed 
p()sition. A_s noted, the petitioner has offered varying information with regard to the beneficiary's support 
personnel. Specifically, the petitioner did not maintain the same claim regarding the number and types of 
employees the beneficiary would supervise, and in fact offered two different sets of facts within .one 
supporting statement. On the one hand the petitioner stated that the beneficiary would oversee accounting 
and support:' persotu'iel as Well as invoicing assistants; but it simultaneously stated in the same letter that the 
ben,~ficiary would supervise quality coordinators who wo~ld oversee the work of a receptionist and an 
unspecified number of medical assistants. The petitioner's organizational chart does not support eithet of the 
petitioner's claims with regard to the beneficiary's subordinate staff. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile sucb inc:onsistenci~s 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). 
With regard to .the claim that the beneficiary ·would oversee accounting and support personnel as well as 
invoicing assistants, the chart does not identify any employee with the position of invoicing assistant. Based 
on the brief job descriptions provided for the receptionist and the quality coordinators, the( job title of 
invoicing assistant would not be app!ic~ble to eith~r type of position. Therefore, it appears that the petitioner 
originally claimed that the beneficiary would oversee employees wh() are not reC:tdily identifiable jn the . 
organizational chart the petitioner provided. Although the petitioner's organizational chart partially supports 
the latter claim to the extent that the chart shows the beneficiary as overseeing quality coordinators, the chart 
d<>es not support the remaining portion of that claim, which indicates that the quality coordinators would 
oversee the.receptionist and an unspecified number of medical assistants. Mote simply put, the chart ·shows 
that th~ beneficiary wo~ld oversee a to.tal of a re~eptfonist an.d three quality co()rdiP.M~rs ~nd : n~?-e of the 
subordmate employees IS shown as havmg subordmates of their own. Thus, not only did the petitiOner pl,lt 
forth two inconsistent claiins within the body of a single document, but it failed to maintain either Of those 
d~irns in an org~ni~a_tionM chart that was intended to illustrate and clarify the petitioner's staffing hierarchy . 
. It is noted that doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 
at 591. In the present matter, the petitioner repeatedly put forth competing statements while failing to provide 
evidence to establish which, if any, of the statements was a true reflection of the petitioner's organizational 
hierarchy at the time the petition was filed. In light of these considerable inconsistencies, the petitioner has 
not establi.shed which employees would serve as the beneficiary's subordinates, thus precluding the AAO 
from conducting further review to determine whether the beneficiary's subordinates are professional, 
supervisory, or managerial personnel. See section 10l(a)(44)(A)(ii) of the Act. Given that the petitioner's 
hourly breakdown indicates that at least half, and pos~ibly more, of the benefici~_ry's time would be spent 
directly overseeing subordinate employees, it is critical that the petitioner es~ablish exactly who those 
subordinates are and what aspects of their positions and/or educational credentials would qualify tllem as 
professional, supervisory, or managerial personnel. 
(b)(6)
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Additionally, while the petitioner 
repeatedly asserted that the beneficiary would assume the role of a funct.on 
manager, the record lacks evidence to support this claim as well. First and foremost, the AAO notes that 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 "es~ential function" within the 
orgMi~ation, .See ·Seclion 10l(a)(44)(A)(ii) of the Act, 8 U.S.C. § ll01(a)(44)(A)(ii). The petitioner's 
function manager claim appears to be focused around the fact that the beneficiary would head a department · 
that is essential to the petitioner's operation. However, this factor alone is not sufficient to establish the 
beneficiary's function manager role, particularly given the claim that the beneficiary would allocate at least 
fifty percent of his titne to managing subordinate staff. 
In summary, the record shows that the petitioner presented multiple inconsistent claims wit.h regard to tlJ,e 
beneficiary's subordinate staff and it failed to provide evidence to substantiate which, if any, of the claims ·it 
put forih was a true reflection of the beneficiary's position within the petitioner's organizational hierarchy at 
the time the petition Wa.8 fil~d. Thus, given the absence of this relevant and material evidence, the AAO 
cannot conclude that the beneficiary would allocate his time primarily to job dUties that ate Within a 
qualifying managerial capacity and on the basis of this initial conclusion the instant petition cannot be 
approved. 
Next, turning to the beneficiey' s former position with the foreign employer, the record shows that the 
petitioner failed, to comply with the director's request for a breakdown of the job dt1ties the beneficiary 
performed and the length of time he spent performing each job duty. Rather, the petitioner repeatedly 
provided the same information and ultimately claimed that the same job description that applies to the 
ben,~ficiaty' s proposed position could be used to describe the beneficiary's foniler employment with the. 
foreign entity. The AAO questions the reliability of such a claim given that the organizational hierarchy of 
the foreign entity's accounting department was considerably different from the hierarchy depicted iQ t.he 
organizational chart of the petitioning U.S. employer. Moreover, even if the AAO were to rely on the 
percentage breakdoWn of the proposed employment and apply thisjob description to the foreign employment, 
t.be AAO woul<i be un:~ble to determine whether the time spent overseeing the work of subordinate employees 
was time spent within a qualifying managerial capacity given that the petitioner failed to provide job 
descriptions and educational credentials of the positions that ar;e depicted as subordinate to the beneficiary in 
. I 
his former position abroad. Going on recor<i 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 ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
While counsel refers., to the petitioner's current approved L-1 employment of the beneficiary as an indicator 
that the petitioner provided adequate proof to establish that the beneficiary was employed abroad in ·a 
qualifying managerial or executive capacity, the prior approval cannot serve as evidence of the petitioner's . . 7 
eligibility. First, the AAO points out that there are significant differences between the nonitntnigtant visa 
classification and the immigrant visa classification in the matter at hand. Among the key distinctions is that 
unlike the immigrant visa classification addressed in this matter, the L-lA nonimmigrant visa classifieati()il 
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NON-PRECEDENT DECISION 
Page 11 
does not require the petitioner to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity .. See 8 e.F.R. § 214.2(1)(3)(iv). 
Second, eacb nonimmigrant and immigrant petitiOn is a sepa,rat~ record of proceeding with a separate burden 
of proof; e~ch petition IJ]USt stand on its own individual merits. users . is not required to assume the burden 
of searching through previously provided evidence submitted in support of other petitions to determine the 
approvability of the petition at hand in the present inatter. the approval of a nonimmigrant petition in no way 
guarantees that users will approve an immigrant petition filed on behalf of the same beneficiary. users 
denies many r-140 immigra,nt petitions after ~pproving prior nonimmigrant h 1 Z9 L~ 1 petitions. See, e.g., Q 
!Jqtq Cofi_sl!,lting, Inc. v. IlfS, 293 F. Supp. 2d at 25; {KEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Finaliy, the AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology 1ntetn,ation,al, 19 r&N Dec. 593, 597 (eomm: 1988). It would be absurd to suggest that USers 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 
F.2d 1084, 1090 (6th eir. 1987), cert. denied, 485 U.S. 1008 (1988). 
For the reasons stated above, the record in the present matter lacks the necessary relevant and reliable 
evidence to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity and on the basis of this second adverse concl~sion, the instant petition caiJ)lot be approved. 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In vis~ petition proceedings, it is t1Ie petitioner's bl,lrden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.e. § 1361; Matter ofOtiende, 26 r&N Dec. 
127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.