dismissed EB-1C Case: Apparel

U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rm. 3000 
Washington, DC 20529 
identifying data deleted (P 
prevent clearly unwd 
invasion of pemoml pivq 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 06 150 53033 Office: NEBRASKA SERVICE CENTER Date: x? 1'1 mr 
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. fj 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
4' 
~obert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 06 150 53033 
Page 2 
DECISION: The Director, Nebraska 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 immigrant visa 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. 
1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of New York that is 
engaged in the production and sale of apparel. The petitioner claims to be the subsidiary of the beneficiary's 
foreign employer, and seeks to employ the beneficiary as its vice-president. 
The director denied the petition concluding that the petitioner had not established that: (1) a qualifying 
relationship existed between the beneficiary's foreign employer and the United States entity; (2) for at least 
one year in the three years preceding the beneficiary's entrance into the United States as a nonimmigrant, the 
beneficiary had been employed abroad in a primarily managerial or executive capacity; or (3) the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, the petitioner notes its compliance with United States Citizenship and Immigration Services' 
(USCIS) previous requests for evidence, and contends that the record is sufficient to establish the 
beneficiary's eligibility for the requested immigrant classification as a multinational manager or executive. 
The petitioner submits a letter and additional documentary evidence 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. 
LIN 06 150 53033 
Page 3 
The first issue in this proceeding is whether the beneficiary's foreign employer and the United States entity 
share a qualifying relationship. 
To establish a qualifying relationship under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e. a United 
States entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 5 
203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C); see also 8 C.F.R. $ 204.5(j)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. 5 204.50)(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. 
The petitioner filed the Form 1-140 on April 24, 2006. In an attached letter, dated February 28, 2006, the 
managing director of Saiwan Knitters Limited, the beneficiary's claimed foreign employer1, represented the 
petitioning entity as the foreign company's subsidiary. The petitioner did not submit documentary evidence at 
the time of filing corroborating its claim of a parent-subsidiary relationship between Saiwan Knitters Limited 
and the petitioning entity. 
In a May 30, 2006 request for evidence, the director directed the petitioner to submit documentary evidence 
of a qualifying relationship between the United States entity and the foreign entities Saiwan Knitters Limited 
and Success Eagle Limited. The director requested that the petitioner submit evidence of Success Eagle 
Limited's ownership, as well as copies of the petitioner's stock ledger and issued stock certificates. 
' The petitioner represents the beneficiary as an employee of Saiwan Knitters Limited since January 2003 and 
as "tak[ing] charge" of an affiliated company, "Success Eagle Limited" in October 2003. As will be discussed 
in greater detail, it is unclear whether the beneficiary was employed by Success Eagle Limited immediately 
prior to the beneficiary's transfer to the United States as an L-1A nonimmigrant. Regardless, based on copies 
of Saiwan Knitters Limited's organizational minutes submitted on appeal, the petitioner has demonstrated a 
parent-subsidiary relationship between Saiwan Knitters Limited and Success Eagle Limited. 
LIN 06 150 53033 
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The petitioner responded in a letter dated August 10, 2006, in which it identified Saiwan Knitters Limited as 
the parent company of the petitioning entity. The petitioner explained that as a matter of good business 
practice and to avoid a conflict of interest with other companies, it was Saiwan Knitters Limited's "policy to 
set up the affiliated company to do business in different areas or markets," thus resulting in the formation of 
Success Eagle Limited and the petitioning entity. As evidence of the claimed parent-subsidiary relationship 
between Saiwan Knitters Limited and the petitioning entity, the petitioner submitted copies of: (1) the United 
States company's filing receipt and certificate of incorporation; (2) a certificate of authority associated with 
the petitioner's bank account identifying, the majority shareholder of Saiwan Knitters Limited, 
as the petitioner's president; (3) four de osit recei ts dated April through July 2004 reflecting the petitioner's 
receipt of funds transferred from -and Saiwan Knitters Limited; and (4) a May 2006 bank 
statement reflecting transfers made by the petitioner to Saiwan Knitters Limited and Success Eagle Limited. 
In a February 21, 2007 decision, the director concluded that the petitioner had failed to demonstrate the 
existence of a qualifying relationship between the United States entity and the beneficiary's foreign employer. 
The director recognized that the beneficiary had been employed by Saiwan Knitters Limited since January 
2003, and subsequently commenced employment with Success Eagle Limited prior to his transfer to the 
United States as a B-1 visitor in July 2004. The director noted that with respect to the relationship between 
the three companies, the petitioner had not submitted the requested stock ledger or stock certificates, and 
stated: "Thus, this portion of the relevant corporate relationships [sic] has not been established." The director 
further concluded that the petitioner had not established the ownership of Success Eagle Limited. 
Consequently, the director denied the petition. 
The petitioner filed a timely appeal on March 22, 2007, and subsequently submitted a letter, dated May 2, 
2007, challenging the director's finding. As evidence of the purported qualifying relationship, the petitioner 
referenced an organizational chart submitted for Saiwan Knitters Limited, which depicted Success Eagle 
Limited and the petitioning entity as subsidiaries of Saiwan Knitters Limited. The petitioner contends that 
this evidence in connection with Success Eagle Limited's company registry and the petitioner's receipt and 
certificate of incorporation are "self-explanatory of the relationship between Saiwan [Knitters Limited], 
Success Eagle [Limited] and [the petitioner]." As additional evidence, the petitioner submits copies of the 
minutes from board of directors meetings held by Saiwan Knitters Limited, which address the formation of 
and the petitioning entity. Specifically, in a December 23, 2003 organizational 
meeting, 
 , also known as , was named as the sole owner of the petitioning entity. 
Upon review, the petitioner had not established the existence of a qualifying relationship between the United 
States entity and the beneficiary's foreign employer. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 1 8 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
LIN 06 150 53033 
Page 5 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
Based on the claims and evidence submitted for review in the instant matter, it appears that the petitioner is 
suggesting the existence of an affiliate relationship between Saiwan Knitters Limited and the United States 
entity based o- majority ownership of Saiwan Knitters Limited and purported sole ownership 
of the petitioner. 
 Here, however, the limited documentary evidence offered by the petitioner does not 
establish that the petitioning entity shared a qualifying relationship with either Saiwan Knitters Limited or 
Success Eagle Limited. Although specifically requested by the director, the petitioner neglected to submit 
copies of its issued stock certificates or stock ledger, evidence that, as noted above, is especially relevant to 
establishing the claimed qualifying relationship between Saiwan Knitters Limited and the petitioning entity. 
The petitioner's failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. 8 103.2(b)(14). 
The additional evidence provided and relied upon by the petitioner on appeal, while probative, is not 
sufficient to establish that the petitioner is the subsidiary or affiliate of Saiwan Knitters Limited. The 
organizational chart depicting Success Eagle Limited and the petitioner as subsidiaries of Saiwan Knitters 
Limited is not corroborative of an affiliate or subsidiary relationship as it was merely prepared by the 
petitioner as an illustration of the purportedly related companies. Again, the petitioner has failed to 
incorporate with the organizational chart such relevant and substantiating evidence as stock certificates or a 
stock transfer ledger. Additionally, the funds transfer receipts relied upon by the petitioner, which reflect 
-, 
transfers from 
f 
and Saiwan Knitters Limited in April through July 2004 to the petitioner, are 
merely suggestive o a relationship between the two companies and 
 but do not confirm Sin 
"original funding" of the United States entity or his purported ownershi and control. The AAO 
notes, in particular, that of the four transfer receipts, only one originated with 
 Moreover, the 
monies transferred during April through July 2004 amount to $109,940, approximately $34,700 less than the 
$144,681 worth of common stock reported on the petitioner's 2003 and 2004 federal income tax returns. 
Furthermore, while listed as a stockholder on the petitioner's New York tax return, purported 
ownership is not acknowledged by the petitioner on Schedule K of any of its federal income tax returns. 
Taken as a whole, the above noted deficiencies undermine the petitioner's claim of a qualifying relationship 
between Saiwan Knitters Limited and the United States entity. Moreover, the petitioner has not provided 
sufficient evidence ofpurported ownership and control of the petitioning entity. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Absent relevant documentary evidence, the AAO 
cannot determine whether a qualifying affiliate or subsidiary relationship existed between Saiwan Knitters 
Limited and the United States entity at the time of filing the immigrant visa petition. Accordingly, the appeal 
will be dismissed. 
LIN 06 150 53033 
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The second issue in this proceeding is whether the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) 
 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 hnction managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 Establishes the gaals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-malung; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
In support of the beneficiary's purported employment as the foreign entity's manager or executive, the 
petitioner submitted with the Form 1-140 a letter, dated February 28, 2006, in which the managing director of 
Saiwan Knitters Limited attested to the beneficiary's qualifications and prior work experience. The 
beneficiary was identified as having occupied the position of senior executive in the foreign entity since 
January 2003, and in October 2003 having assumed the responsibility "to take charge of our 
divisionallaffiliated company," Success Eagle Limited. The managing director stated that during the 
LIN 06 150 53033 
Page 7 
beneficiary's overseas employment, and prior to his entrance into the United States in January 2005', the 
beneficiary held the following responsibilities: 
To sit in the Executive Team to do the research and advise the [tlop management in 
planning the company roadmap for future business expansion and allocation of resources 
and etc.. In addition, [the beneficiary] was assigned to oversee and manage a 
divisionallaffiliated company namely Success Eagle Limited, which was established since 
October, 2003 with the primary mission for looking into business opportunit[ies] for 
different scenario[s] other than OEM contract manufacturing such as Trademark Licensing 
and Joint Venture Partnership and etc. In the course of exercising his responsibilities and 
duties, [the beneficiad was fully competent to perform his professional duties as described 
above. 
In an attached affidavit, the beneficiary's work experience with the foreign entity was described in essentially 
the same manner as that provided above. 
On May 30, 2006, the director issued a request for evidence noting that the offered job description was too 
vague to determine whether the beneficiary occupied a primarily managerial or executive position in the 
foreign entity. The director asked that the petitioner "describe the bob] duties in much greater detail," and 
incorporate in the job description the amount of time the beneficiary spent performing each task. The director 
also requested that the petitioner distinguish between the tasks performed by the beneficiary while employed 
at Saiwan Knitters Limited and those performed by the beneficiary in connection with his employment at 
Success Eagle Limited. The director further directed the petitioner to submit organizational charts depicting 
the staffing levels and the beneficiary's position in the two foreign companies. 
The petitioner responded in a letter dated August 10, 2006, explaining that during the beneficiary's 
employment with Saiwan Knitters Limited, the beneficiary "was assigned to establish and finally incorporated 
the company of Success Eagle Limited in December, 2003." With respect to the "details of the job 
description," the petitioner referenced the previously offered job description that is cited above. The 
petitioner attached an organizational chart of the foreign entity that depicted the company as consisting of a 
sales and a manufacturing division, which were comprised of four and three companies, respectively. An 
appended statement indicated that the foreign company's staffing included: a senior director; five directors, 
including the beneficiary; an accountant; a merchandising manager; a designer; a head production 
coordinator; and twelve employees who performed clerical, technical and shipping functions. On a separate 
organizational chart of Success Eagle Limited, the beneficiary was identified as the company's director. 
In a decision dated February 2 1, 2007, the director concluded that the petitioner had not demonstrated that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. The director restated the 
offered job description, concluding that it was "too vague" and contained "insufficient detail" to conclude that 
the tasks performed by the beneficiary in either Saiwan Knitters Limited or Success Eagle Limited were 
primarily managerial or executive in nature. The director also focused on the beneficiary's responsibility in 
' The record indicates that the beneficiary entered the United States on July 11, 2004 on a B-1 visa. USCIS 
subsequently approved an L-IA nonimmigrant visa petition filed by the petitioner on behalf of the beneficiary 
for a term beginning on January 17, 2005. The petitioner represented on the Form 1-140 that the beneficiary 
entered the United States on July 1 1,2005 as an L- 1A nonimmigrant intracompany transferee. 
LIN 06 150 53033 
Page 8 
Success Eagle Limited of "looking into new business opportunities," and stated that the beneficiary's role in 
"[dleveloping leads for future work" would not be considered a managerial or executive responsibility. 
Consequently, the director denied the petition. 
The petitioner filed a timely appeal on March 22, 2007, and subsequently submitted a letter, dated May 2, 
2007, in support of the appeal. In the letter, the petitioner noted its compliance with requests made by USCIS 
for evidence establishing the beneficiary's eligibility for classification as a manager or executive, and 
challenged USCIS' finding that the job description of the beneficiary's overseas employment was too vague. 
The petitioner stated: 
During the tenure in the Executive Team of Saiwan, besides the responsibility in the 
business side, [the beneficiary] was also taking charge of the factory management duties in 
the factory of Saiwan Knitter Co. As a matter of fact, the production manager in the 
factory was under [the beneficiary's] direct supervision. [The beneficiary's] high caliber in 
this capacity could be reflected by the formerly submitted Affidavit[s] of the Managing 
Director of Saiwan and himself. 
In attached translated copies of the foreign entity's meetings of its board of directors, the beneficiary is 
identified as concurrently serving in the positions of senior executive of Saiwan Knitters Limited and "market 
explorer," during which he would explore the United States market in order to expand the customer base of 
Saiwan Knitters Limited and locate new sale opportunities. According to the minutes from the board of 
director's meetings, the beneficiary was appointed to the position of "market explorer" or "senior 
administrator" in April 2003, and that in September 2003, the beneficiary was assigned the position of 
director of the newly formed company, Success Eagle Limited. 
The petitioner also submitted a copy of a December 30, 2004 affidavit from the managing director of Saiwan 
Knitters Limited, which included the same job description for the beneficiary as that provided above. 
Upon review, the petitioner has not demonstrated that the beneficiary was employed abroad in a primarily 
managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.5(j)(5). 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). 
Here, the limited evidence offered by the petitioner with respect to the beneficiary's foreign employment 
precludes a finding that the beneficiary was employed abroad in a primarily managerial or executive capacity. 
The AAO first notes that notwithstanding the director's request, the petitioner did not clearly distinguish the 
beneficiary's employment with Saiwan Knitters Limited and Success Eagle Limited or describe his purported 
concurrent role as senior executive and director of both organizations. Based on the information contained in 
the copies of Saiwan Knitters Limited's organizational minutes that were submitted on appeal, it appears that 
the beneficiary assumed employment with Success Eagle Limited in September or October 2003; however, it 
LIN 06 150 53033 
Page 9 
is unclear whether the beneficiary also continued to work for Saiwan Knitters Limited. This ambiguity 
hinders the instant analysis, as it is unclear how and where the beneficiary was employed prior to his transfer 
to the United States as a nonimmigrant. The petitioner's failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Matter of 
Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Regardless, the petitioner offered the same vague job description for the beneficiary's foreign employment in 
either organization, which falls significantly short of establishing his former overseas employment in a 
primarily managerial or executive capacity. As evidence of the beneficiary's managerial or executive foreign 
employment, the petitioner repeatedly relied on its statements that the beneficiary researched future business 
opportunities, advised Saiwan Knitters Limited's " [tlop management, " and determined the allocation of 
resources. With respect to Success Eagle Limited, the petitioner originally suggested that the beneficiary held 
only a limited role in the company that was restricted to its establishment. Yet, as discussed above, 
documentation subsequently submitted by the petitioner represented the beneficiary as the director and 
employee of Success Eagle Limited. No additional evidence was submitted describing the responsibilities 
held by the beneficiary in connection with the position of director of Success Eagle Limited. Similarly, the 
petitioner has not resolved these deficiencies with its additional statements on appeal that the beneficiary was 
"[in] charge of factory management duties" and supervised the factory manager. Reciting the beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question 
in this case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
afd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO notes the petitioner's failure to submit additional evidence of the beneficiary's purported overseas 
managerial or executive employment despite the director's request "to describe the duties in much greater 
detail." Additionally, the petitioner neglected to provide an allocation of the amount of time the beneficiary 
spent performing tasks in Saiwan Knitters Limited or Success Eagle Limited. Again, the failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). Moreover, other than a brief reference to the beneficiary's supervision of the factory 
maintained by Saiwan Knitters Limited, the petitioner did not submit detailed evidence on appeal of the 
beneficiary's purported overseas employment as a manager or executive. Rather, the petitioner merely 
challenged the director's finding, stating that "[tlhe position of [the beneficiary] in Hong Kong was not vague 
at all." Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Based on the foregoing discussion, the petitioner had not demonstrated that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
The third issue in this proceeding is whether the beneficiary would be employed by the United States entity in 
a primarily managerial or executive capacity. 
On the Form 1-140, the petitioner noted the beneficiary's proposed employment as vice-president of the five- 
person United States company, during which he would "take charge of Sales & Marketing and the 
coordination with the production in China and others as specified in the attached affidavit of intended 
LIN 06 150 53033 
Page 10 
employment executed by the Office Manager of the Petitioning U.S. Company." In the referenced April 10, 
2006 affidavit, the petitioner's office manager described the beneficiary's responsibilities as follows: 
To take charge of the Sales & Marketing and the coordination with the production in China. 
Most important of all was to negotiate and finalize licensing agreements and sales contract 
under the authorization of the parent company. On daily basis, [the beneficiary] has 
overseen and supervised all sales activities such as to explore new customers, manage 
existing customers, work with merchandiser and designer of the department stores on the 
next collection so and so. To monitor the teleconference with China production on regular 
basis to review the manufacturability and confirm the costing of any new design as well as 
to ensure all designs would be produced in a timely manner that coincides with sales. 
The petitioner noted that under the beneficiary's leadership, the United States company's revenue increased 
from $640,000 in 2004 to over $2 million in 2005. 
In an appended affidavit of work experience, the beneficiary described his proposed employment in the same 
terms as those outlined above. 
In his May 30, 2006 request for evidence, the director instructed that the offered job description was too 
vague to determine whether the beneficiary would be employed in a primarily managerial or executive 
capacity. The director directed the petitioner to submit a detailed description of the beneficiary's proposed job 
duties, including an estimate of the amount of time the beneficiary would devote to performing each task. 
The director further requested an organizational chart of the United States entity identifying the beneficiary in 
the organizational hierarchy and the names and job duties of the company's employees. The director also 
asked that the petitioner submit copies of the Internal Revenue Service (IRS) Forms W-2 issued by the 
company in 2005. 
In its August 10, 2006 response, the petitioner emphasized the importance of employing the beneficiary as a 
"decision maker from the parent company to supervise and direct us to do the business and smooth out the 
communication with the associates both in Hong Kong and China due to language barrier and technical 
competence." The petitioner noted that while employed by the United States entity, the beneficiary would be 
employed in a capacity similar to that of a general manager and operation director. As evidence of "the 
details of the [proposed] job description" the petitioner referenced the affidavits previously submitted with the 
Form I- 140. 
In an attached organizational chart, the petitioner's staffing levels were depicted as consisting of: a president; 
the beneficiary's position of vice-president; an executive sales director; an account executive; a designer; an 
office administrator; and, a clerical worker. The AAO notes that this representation is not consistent with the 
petitioner's original claim on the Form 1-140 of employing a staff of five. 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. at 591-92. 
The petitioner also submitted copies of its August 4, 2006 and August 11, 2006 payroll summaries and a June 
7, 2006 time sheet. The information contained in these documents suggests that of the seven individuals 
represented as being employed by the petitioner, three were likely employed on a part-time basis. 
LIN 06 150 53033 
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In his February 21, 2007 decision, 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. 
Noting that the petitioner had failed to respond to the director's specific request for more detailed job duties, 
the director stated that the job description twice offered by the petitioner was too vague to establish the 
beneficiary's employment in a primarily managerial or executive capacity. The director also noted that the 
petitioner had not provided the requested description of the tasks to be performed by the other employees of 
the petitioning entity or documentary evidence, such as IRS Form W-2 or quarterly wage reports, establishing 
the employment of its clerical worker and account executive. The director determined that the petitioner's 
operations are not sufficiently complex so as to warrant the employment of its purported seven-person staff. 
Consequently, the director denied the petition. 
On appeal, the petitioner challenges the director's finding that the United States company's organizational 
hierarchy was not sufficient to support the beneficiary in a primarily managerial or executive capacity. The 
petitioner explains that the company's president remains in Hong Kong and is not authorized to work in the 
United States, thus leaving the beneficiary and the executive sales director as the only "[elxecutive level" 
personnel employed in the United States. The petitioner also notes the employment of approximately "4 - 5 
part-time and freelance workers from time to time." The petitioner further claims its use of outside 
contractors to perform such "routine" functions as: warehousing, shipping, receiving, storing, and domestic 
deliveries; sales throughout the United States; receiving and facilitating purchase orders; and management 
information systems tasks, such as processing orders, shipments, billing, accounting, and inventory. 
As additional evidence, the petitioner submits a May 2, 2007 letter, in which the company's sales director 
identifies the beneficiary as his supervisor and advisor who "is in charge of all the day[-] to[-]day operations 
in the New York office." He further states: 
[The beneficiary] is very experienced and knowledgeable in the garment industry both in 
the area of production of finished garments and fabrication that is used in the product line. 
He is well aware of what's achievable not only from the product side but making sure that 
the finished product can be sold at a profit. Most important of all, since [the beneficiary] is 
a Senior Executive representative from our parent company in Hong Kong and is a liaison 
from our New York office to our factory in China. [sic] His communication with Hong 
Kong and factories in China is always helpful and crucial for me to conclude the deal with 
my prospective clients. With all due respect and consideration, I strongly believe that [the 
beneficiary's] continuous leadership in [the petitioning entity] is mandatory and imperative. 
The petitioner also submits a copy of its April 13, 2007 payroll register identifying six employees, including 
the beneficiary. The salaries reflected on the payroll register are consistent with the petitioner's statements 
that at least three of its employees were employed on a part-time basis on the filing date. 
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. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.5Cj)(5). 
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Despite the petitioner's claims otherwise, the offered job description is not sufficient to establish the 
beneficiary's purported employment in a primarily managerial or executive capacity. For example, the 
petitioner's vague statements included the beneficiary's responsibility "[tlo take charge of the Sales & 
Marketing," coordinate and monitor productions with China, negotiate and finalize licensing and sales 
agreements, confirm new design costs, and ensure the timely completion of designs. Similarly, with respect 
to the beneficiary's "daily" tasks, the petitioner asserts such broad responsibilities as supervising the 
company's sales activities, managing existing customers, and working with merchandisers and designers. The 
petitioner's general representations as to the beneficiary's managerial or executive authority fail to identify the 
specific managerial or executive tasks to be performed by the beneficiary as the company's vice-president. 
Likewise, the beneficiary's "daily" tasks fall short of satisfying the regulatory requirement that the petitioner 
clearly describe the managerial or executive to be performed by the beneficiary. See 8 C.F.R. 5 204.50)(5). 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
at 1108. 
Additionally, the petitioner did not submit evidence of its blanket claim that the beneficiary would also 
occupy such positions as general manager and operations director. The petitioner makes such allegations in 
its response to the director's request for evidence, stating only that the beneficiary would hold these positions 
as a result of his "capability and experience in the garment industry." Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. at 165. 
The petitioner's failure to detail the specific tasks associated with the beneficiary's proposed employment or 
those performed by the petitioner's employees raises questions as to the veracity of the petitioner's claim to 
employ the beneficiary as its manager or executive. The AAO notes that although the director requested 
specific evidence of the beneficiary's proposed employment, the petitioner neglected to provide a more 
detailed account of the roles held by the beneficiary and the other employees in the petitioning entity. Again, 
the petitioner's failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. 
 103.2(b)(14). 
Specifically, the beneficiary is noted as taking "charge" of the company's sales and marketing functions. The 
petitioner has neglected to explain the tasks associated with this responsibility; yet, it is reasonable to at least 
question the beneficiary's managerial or executive role over the company's sales and marketing in light of the 
employment of an executive sales director, who claims in his May 2, 2007 letter to be "involved in all the 
aspects of sales and design" and to work with "all the major department [stores]." The AAO notes that 
despite being subordinate to the beneficiary, the executive sales director receives a monthly compensation of 
approximately $800 more than the beneficiary. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Dec. at 591. 
Moreover, the record is devoid of evidence corroborating the petitioner's claim on appeal of utilizing outside 
contractors to perform the routine functions of the United States business. The petitioner identifies twelve 
businesses that have purportedly been performing its warehousing, sales, purchasing, and management 
information systems functions, and claims that these organizations sufficiently support the beneficiary in a 
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primarily managerial or executive capacity. The AAO notes that the petitioner did not address its purported 
use of outside contractors until the instant appeal and after the director questioned whether the petitioner's six- 
person staff would warrant the employment of the beneficiary as a manager or executive. Nevertheless, there 
is no documentary evidence, such as invoices for services or payments rendered by the petitioner, 
demonstrating that the petitioner used outside organizations to perform its day-to-day business functions. 
Also, there is limited evidence on the petitioner's federal income tax return for the tax year beginning 
December 1, 2005 through November 30, 2006 of payments made for the above-named contracted services. 
Without additional documentary evidence, the petitioner's representations on its tax return of paying 
approximately $1 16,000 and $28,000 for warehousing and subcontracting expenses, respectively, are not 
sufficient to corroborate the petitioner's claim of utilizing twelve separate organizations for its warehousing, 
sales, purchasing, and management information systems functions. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. at 165. 
The AAO also addresses the staffing levels maintained by the petitioner on the date of filing. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 197l)(holding that a petitioner must establish eligibility at the time of 
filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set of facts). 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. 
Here, while the record contains inconsistencies as to the exact number of individuals employed by the 
petitioner at the date of filing, the April 13, 2007 payroll register submitted on appeal suggests the 
employment of the beneficiary, an executive sales director, an account executive, a designer, an office 
administrator, and, a clerical worker. As noted by the AAO and conceded by the petitioner, the beneficiary 
and executive sales director appear to be the only workers employed by the petitioner on a full-time basis. In 
light of the part-time status of its remaining four employees, as well as the petitioner's failure to document its 
purported use of outside contractors, it is questionable whether the company's reasonable needs as a clothing 
wholesaler might plausibly be met through the services of the beneficiary, the executive sales director, and 
four part-time employees. The record does not support a finding that the reasonable needs of the petitioning 
organization would be met while employing the beneficiary in a primarily managerial or executive capacity. 
Rather, based on what appears to be inadequate staffing levels, it is reasonable to conclude that the 
beneficiary would likely be personally responsible for performing non-managerial and non-executive tasks of 
the petitioner's business functions. 
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 demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. For this additional 
reason, the appeal will be dismissed. 
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The AAO acknowledges that USCIS previously approved an L-1A nonimmigrant petition filed by the 
petitioner on behalf of the beneficiary. 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 $9 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 
5 1 10 1 (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: $9 204 and 214 of the Act, 8 
U.S.C. $8 1154 and 1184; see also 8 316 of the 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-1 A 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 25 (D.D.C. 2003). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. See 8 C.F.R. 
 103.8(d). 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 I- 140 petitions after approving prior nonimmigrant I- 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. Sava, 724 F. Supp. at 1103. 
Furthermore, if the previous nonirnmigrant petition was 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). Due to the lack of 
required evidence in the present record, the AAO finds that the director was justified in departing from the 
previous nonimmigrant approval 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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The petition will be 'denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.