dismissed EB-1C Case: Agricultural Export

U.S. Department of EIon~eland Security 
20 Mass. Ave.. N.W.. Rnl. A3042 
Washington, DC 20529 
i&nt&bg data deleted to 
U. S. Citizenship 
and Immigration 
pimeat dearly unw2uTmted 
bi5domd-d- 
Office: CALIFORNIA SERVICE CENTER 
 Date: JUN 0 2 2006 
WAC 04 2 1 1 53803 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 
 1 153(b)(l)(C) 
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. 
he& &L- 
%Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
3 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California that is 
engaged in the export of agricultural products to Korea. The petitioner seeks to employ the beneficiary as its 
chief executive officer. 
The director denied the petition concluding that the petitioner had not demonstrated that: (I) the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity; or (2) a 
qualifying relationship existed between the foreign and United States entities at the time of filing. The 
director also noted that the record contained insufficient evidence to determine whether the petitioner had the 
ability to pay the beneficiary's proffered salary at the time of establishing the priority date. 
On appeal, counsel for the petitioner contends that, as the company's chief executive officer, the beneficiary 
satisfies the criteria outlined in the statutory definition of "executive capacity." Counsel further contends that 
a parent-subsidiary relationship exists between the foreign and United States entities as a result of the foreign 
entity's ownership of the entire amount of stock issued by the petitioner. Counsel submits a brief in support of 
the appeal. 
Section 203(b) of the Act states, in pertinent part: 
(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 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who 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 or executive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United 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 required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Page 3 
The AAO will first consider the issue of whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 1 0 1 (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 petitioner filed the instant immigrant petition on July 27,2004 noting the beneficiary's employment as the 
chief executive officer of the five-person company. In an appended letter, dated July 22, 2004, the petitioner 
noted the beneficiary's position as "president and CEO," and outlined the beneficiary's responsibility of 
making decisions related to the petitioner's business, finances, and long-term goals, as well as scientific 
issues. The petitioner provided the following job description for the beneficiary: 
Page 4 
He is responsible for making decisions on acquiring crops compatible with the Korean market 
and demands giving [sic] Korea's dependence on import materials. He is responsible for 
reviewing videos, U.S. reports, track commodity markets and set prices based upon market 
conditions in Korea and to track commodity trends and demands. He interprets sales data and 
forecasts and adjusts according to the U.S. supply. Because [of] Korea's dependence on 
import materials, this position plays an important part in maintaining Korea's food supply by 
ensuring agricultural productivity and safety of food supply. 
a. Scientific Decisions 
The President and CEO uses the principles of biology, chemistry, physics, 
mathematics and other sciences to solve problems in agriculture. He reviews work of 
biological scientists on basic biological research and appl[ies] the advances in 
knowledge brought about by biotechnology. In the past two decades, there has been 
a rapid advance in basic biological knowledge relating to genetics spurred [by] 
growth in the field of biotechnology. This technology manipulates the genetic 
material attempting to make organisms and livestock more productive or resistant to 
disease. 
As the President and CEO, [the beneficiary] is responsible for analyzing data to 
identify genetic traits in swine and cattle and choose between strains of cattle and 
swine depending on its breeding history. He reviews data in the U.S. with the 
changing needs of the Korean market and makes decisions as to the modifications 
required in the import of product and livestock to Korea and directs and oversees 
management for the successful execution and implementation of these decisions. 
b. Business Decisions 
The CEO is required to make decisions on determining the types of hay required for 
import in the Korean market, selecting the items for export from Washington, Oregon 
and California, and directing the General Manager to select farmers, balers and 
pressing facilities and receive quotations for contracts for purchase, and form 
contracts with the ocean freight forwarders for import overseas. Upon reviewing 
estimates, the CEO makes the decision. 
c. 
 Financial Decisions/Setting Long Term Goals 
The CEO is also responsible for making decisions of export CNF prices as the prices 
vary according to quality grade, region, harvest time, etc. He is responsible for 
setting long term goals and policies for the U.S. Company. At the current time, he 
has established three goals: 
a) The Construction of a Hay Pressing Facility - decision to construct in El Centro, 
California based upon cost-benefit analysis of land and labor. 
b) The Expansion of American Breeding Company to Korea - the CEO is 
responsible for establishing compatibility between Korean and American Genetic 
History; and, 
Page 5 
c) The Development of New Export Items - identify and source appropriate 
products compatible with Korean market based upon conditions and needs. 
[The beneficiary] is responsible for directing management in the day-to-day operations and to 
successfully execute the new goals of the U.S. Company. As the CEO of the U.S. Company, 
he exercises a wide latitude in discretionary decision-making and only reports his decisions 
and policy making to the Parent Company. When the occasion warrants, [the beneficiary] 
may seek direction or input from Parent Company. 
The petitioner identified and explained the following positions subordinate to the beneficiary: general 
manager, agricultural division manager, operations division employee, and hay specialist. 
In a decision dated August 24, 2005, the director concluded that the petitioner had not demonstrated that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director referenced the job description offered by the petitioner, and stated that the job duties are "more 
indicative of an employee who is performing the necessary tasks to provide a service or to produce a 
product," which the director noted is not considered to be executive in nature. The director concluded that the 
petitioner's organizational structure did not preclude the beneficiary from "assisting with the day[-]to[-]day 
non-supervisory duties." The director further concluded that the beneficiary would not be employed as a 
function manager, as he was performing "routine operational activities of the entity." The director noted an 
inconsistency in the quarterly wage reports submitted by the petitioner and the petitioner's claimed staffing 
levels, in that the report filed for the quarter ending December 3 1, 2003 reflected three employees as opposed 
to five.' Consequently, the director denied the petition. 
On appeal, counsel for the petitioner outlines the statutory definition of "executive capacity" and contends 
that the beneficiary's employment in the United States entity satisfies the statutory requirements. Counsel 
restates the job description provided for the beneficiary's role as president and chief executive officer, and 
supplements the record with another description of the beneficiary's job duties. As counsel's brief is part of 
the record, it will not be entirely repeated herein. Counsel explains that the beneficiary would make financial 
decisions related to the variety and quantity of hay to be exported, as well as scientific and business decisions 
regarding the quality of the hay purchased by the petitioner. Counsel states that the beneficiary would also be 
responsible for the management of the company's finances, which includes reviewing reports and determining 
prices. Counsel addresses the beneficiary's additional responsibility of choosing items available for export, in 
particular the breed of swine and dairy cattle. Counsel stresses the knowledge needed in selecting the specific 
breed to be exported and in interpreting the data resulting from various tests performed on the livestock. 
Counsel contends that these daily tasks are executive in nature and do not qualify as "menial" tasks of the 
organization. Counsel explains that the beneficiary's relocation to the United States "does not diminish or 
minimize his responsibilities and/or authority required to fulfill the parent company's clients needs," 
particularly in light of the foreign entity's dependence on the petitioner for its agricultural products. Counsel 
emphasizes the "steady growth" in the petitioner's sales volume, particularly during the year 2003, as 
evidence of the beneficiary's employment as an executive. 
I 
 As noted by the director, the petitioner did not provide its quarterly wage report for the quarter ending 
September 30,2004, the period during which the immigrant petition was filed. 
Page 6 
Counsel restates the petitioner's staffing levels and the job duties performed by each worker, and submits an 
organizational chart of the petitioning entity. Counsel also provides certifications of each worker's graduation 
from a university in support of his assertion that the beneficiary is managing professionals. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
Although counsel addresses on appeal the beneficiary's employment in an "executive" capacity, both the 
petitioner and counsel reference throughout the record the beneficiary's managerial authority over 
professional employees. See section 101(a)(44)(A)(ii) of the Act. The petitioner has not clarified the capacity 
in which'it is claiming to employ the beneficiary. A petitioner must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. The petitioner must demonstrate that the beneficiary's responsibilities will meet the requirements of 
one or the other capacity. In the alternative, if the petitioner chooses to represent the beneficiary as both an 
executive and a manager, it must establish that the beneficiary meets each of the four criteria set forth in the 
statutory definition for executive and the statutory definition for manager. As discussed below, the petitioner 
has not demonstrated that the beneficiary is primarily employed as a manager or an executive. 
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 prove 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). 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. fj 204.56)(5). 
Based on the current record, the AAO is unable to determine whether the claimed managerial and executive 
job duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs 
non-qualifying operational duties of the organization. The petitioner fails to quantify the time the beneficiary 
would spend on the named managerial or executive job duties, as opposed to the operational tasks assigned to 
the beneficiary. This failure of documentation is important because several of the beneficiary's daily tasks, 
particularly in relation to the scientific decisions made by the beneficiary, are non-managerial or non- 
executive in nature. For example, the beneficiary's analysis of biological research and data includes 
performing an "exterior investigation" to identify genetic traits and the breeding history of swine and cattle. 
The petitioner went so far as to mention that this investigation included an examination of the test 
performance data issued by the National Swine Registry of America and The National Association of Animal 
Breeders. In addition, the beneficiary would review soil and climate conditions in order to select the quality 
of hay to be exported, as well as other crops that would be compatible with the Korean market. The 
beneficiary's analysis included "reviewing videos, U.S. reports, track[ing] the commodity markets and 
[setting] prices based upon market conditions in Korea." Based on the petitioner's representations, the 
beneficiary is personally responsible for selecting the petitioner's product line, which encompasses 
performing in-depth analyses of studies and test data, rather than managing or directing others who would 
perform this function. The beneficiary is not merely applying his professional expertise to the development 
and modification of the petitioner's product line, but is solely responsible for performing the function. See 9 
FAM 41.54 N8.2-1 (stating that a manager or executive may apply his "professional expertise to a particular 
problem"). The petitioner's description of the beneficiary's job duties does not establish what proportion of 
the beneficiary's duties is managerial or executive in nature, and what proportion is actually non-managerial 
or non-executive. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). The AAO notes that 
an employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101 (a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
The job descriptions provided by counsel on appeal do not clarify the beneficiary's purported role in the 
United States as a manager or executive. Besides being particularly vague, the petitioner outlines similar 
responsibilities for both the general manager and the beneficiary on its organizational chart. The actual duties 
 themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), agd, 905 F.2d 41 (2d. Cir. 1990). For example, the petitioner represents that the general 
manager would select the goods to be sold by the petitioner, set price terms, review sales reports and financial 
data to determine "cost reduction and program improvement," coordinate "financial and budget activities in 
order to fund operations, maximize investments, and increase efficiency," and establish the responsibilities of 
each department. These same tasks were identified as responsibilities of the beneficiary in the petitioner's 
June 14, 2003 letter and in counsel's appellate brief. Additionally, the petitioner represents that the hay 
specialist would be "[rlesponsible for all hay market research," yet explained in its July 22, 2004 letter and 
appellate brief that the beneficiary's knowledge of the Korean market is essential to the decisions related to 
buying and exporting hay. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582,591-92 (BIA 1988). 
Moreover, the petitioner has not established that its staffing levels are sufficient to support the beneficiary in a 
primarily managerial or executive position. As required by section 101(a)(44)(C) of the Act, if staffing levels 
are used as a factor in determining whether an individual is acting in a managerial or executive capacity, CIS 
must take into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. 
At the time of filing, the petitioner was a four-year-old export company that employed the beneficiary as chief 
executive officer, as well as two managers, an "operations" employee and a hay division specialist. The AAO 
notes that although assigned a managerial title, the agricultural division "manager" is not supervising lower- 
level workers and is responsible for performing the tasks of the department. Likewise, as discussed above, 
the petitioner has offered the beneficiary the "executive" title of "chief executive officer," yet the beneficiary 
is performing non-qualifying operational tasks relevant to the petitioner's sales. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly be 
met by the services of the beneficiary and four employees. Regardless, the reasonable needs of the petitioner 
serve only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or 
executive duties. The petitioner must still establish that the beneficiary is to be employed in the United States 
in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As 
discussed above, the petitioner has not established this essential element of eligibility. 
Based on the foregoing discussion, the petitioner has not established the beneficiary's employment in the 
United States entity in a primarily managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
Page 8 
The AAO will next address the issue of whether the petitioner demonstrated the existence of a qualifying 
relationship between the foreign and United States entities at the time of filing. 
The regulation at 8 C.F.R. fj 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each entity; 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In its July 22, 2004 letter submitted with the immigrant petition, the petitioner noted the existence of a parent- 
subsidiary relationship between the foreign and United States entities. As evidence of this relationship, the 
petitioner submitted the following documents: (1) its articles of incorporation authorizing the issuance of 
1,000,000 shares of stock; (2) a May 22, 2000 stock certificate naming the foreign entity as the owner of 
1,000,000 shares of stock; (3) the petitioner's stock transfer ledger confirming the transfer of stock to the 
foreign entity; (4) transaction receipts for wire transfers to the petitioning entity occurring during the months 
of February through May 2000; and (5) the petitioner's years 2001,2002 and 2003 income tax returns. 
In his August 24, 2005 decision, the director concluded that the petitioner had not demonstrated the existence 
of a qualifying relationship between the foreign and United States entities. Specifically, the director stated 
that the petitioner had not "shown that the foreign entity owns the U.S. entity," as a result of furnishing 
consideration in exchange for its purported stock ownership. The director stated that it was not clear which of 
the wire transfer receipts offered by the petitioner evidenced funds transferred for the purpose of purchasing 
the petitioner's stock. The director also noted that Schedule L of the petitioner's 2001 income tax return 
reflected a zero balance in common stock at the beginning of the year and a balance of $3,000 at the end of 
the year. The director stated that the information contained on the tax return did not reflect the petitioner's 
issuance of stock in May 2000, and noted that it was unclear whether the $3,000 balance in capital stock 
"corresponds accurately to the 1,000,000 shares sold." Consequently, the director denied the petition. 
On appeal, counsel for the petitioner contends that the foreign entity is the parent company of the United 
States corporation, and submits the following additional evidence: (1) the minutes from the foreign company's 
board of directors meetings in August 1999, April 2001, and June and October 2003, each discussing the 
United States entity; (2) the previously provided stock certificate and stock transfer ledger; (3) the foreign 
entity's December 3 1, 2000 balance sheet reflecting its ownership interest in the petitioning entity as a 
"marketable security"; and (4) two wire transfer receipts, dated May 22, 2000, confirming a cumulative 
Page 9 
transfer of funds in the amount of approximately $68,000 from the foreign entity to the petitioner. Counsel 
addresses the director's reference to the petitioner's tax returns, and explains that the director failed to consider 
that the petitioner's 2001 tax return reflects corporate earnings for the year 2000. Counsel states: 
The U.S. Corporation was formed in May 2000, and as of January 1, 2000, the corporation 
did not exist; therefore, the value of common stock at the beginning of the year was $0.00, as 
reflected in Schedule L of the U.S. Corporate Tax Returns. [The foreign entity] purchased 
the stock for a total of $50,000 in May 2000. By end of year 2000, the value of common 
stock, held in its entirety by [the foreign entity] was determined to be $3,000.00 according to 
the calculations of [the petitioner's certified public accountant]. 
Upon review, the petitioner has demonstrated the existence of a qualifying relationship between the foreign 
and United States entities. The petitioner provided documentary evidence of the foreign entity's ownership in 
the form of a stock certificate, stock transfer ledger, and wire transfer receipts, as well as sufficient 
documentation confirming the parent-subsidiary relationship, including the minutes from the foreign 
company's board of director's meetings and its December 2000 balance sheet reflecting its stock interest in the 
United States entity. The AAO acknowledges counsel's explanation on appeal verifying the value of the 
petitioner's common stock on its 2001 income tax return. Accordingly, the director's decision with regard to 
this issue will be withdrawn. 
The director noted in his August 24, 2005 decision the issue of whether the petitioner demonstrated its ability 
to pay the beneficiary's proffered annual salary at the time the priority date was established. The record does 
not demonstrate the petitioner's ability to pay. 
The regulation at 8 C.F.R. 
 204.5(g)(2) states: 
Any petition filed by or for any employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer 
has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the 
time the priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In 
the present matter, the petitioner did not establish that it had previously paid the beneficiary at the proposed 
salary. Rather, the petitioner stated in its July 22, 2004 letter that the beneficiary is on the payroll of both the 
foreign and United States entities, and receives a salary from each totaling $100,000. Payroll records from 
the foreign entity reflect that in 2003, the foreign company paid $77,800 of the beneficiary's salary. The 
regulation at 8 C.F.R. 5 204.5(g)(2) requires that the petitioner show that "the prospective United States 
employer has the ability to pay the proffered wage." (Emphasis added). The regulations do not allow for the 
consideration of the foreign entity's financial status in the ability to pay analysis. 
Page 10 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraji Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income. 
623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have considered 
income before expenses were paid rather than net income. Finally, there is no precedent that would allow the 
petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
As the petition's priority date falls on July 27, 2004, the AAO must examine the petitioner's tax return for 
2004. The petitioner, however, has not provided its 2004 tax return for review. The AAO notes that while it 
is reasonable that the tax return had not yet been prepared at the time of filing, it was likely available for the 
AAO's review at the time of the appeal in September 2005. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Calrfornia, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Although the petitioner submitted bank statements of its account balances for the months of January through 
June 2004, this is not sufficient evidence to demonstrate its ability to pay. See 8 C.F.R. # 204.5(g)(2) (stating 
that evidence of a petitioner's ability to pay "shall be either in the form of copies of annual reports, federal tax 
returns, or audited financial statements"). The petitioner has not presented evidence that at the time the 
priority date was established it had the ability to pay the beneficiary his proffered annual salary. Again, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofjci, 22 I&N Dec. at 165. For this additional reason, the petition will 
be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The AAO acknowledges that CIS previously approved four L-1 nonimmigrant petitions for the benefit of the 
beneficiary, including two L-1A visa petitions and two L-1B visa petitions. It should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $3 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. # 1 101 (a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cf: $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also 5 316 ofthe Act, 8 U.S.C. 5 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. 5 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing L-1 petitions than Form 1-140 immigrant 
petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30 (recognizing that CIS approves some petitions in error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of prooc each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Suva, 
724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve 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 International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Based on the present 
record, the AAO finds that the director was justified in departing from the previous nonimmigrant approvals 
by denying the present immigrant petition. 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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. 3 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.