dismissed EB-1C Case: Audio/Video Equipment

identifying deta Meted t~ 
prevent clearly unmted 
invasion of geaoPa pivwy 
U.S. Department of Momeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship -- 
and Immigration 
Services 
FILE:' Office: TEXAS SERVICE CENTER Date: BAR 0 6 2007 
SRC 05 127 50272 
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. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All dodurnents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service center.' The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation engaged in the business of renting, selling, and installing video and 
audio equipment. It seeks to employ the beneficiary as its general manager. 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. 5 1153(b)(l)(C), as a multinational executive or 
manager. The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a managerial or executive capacity; and 2) the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's findings and submits a brief in support of her arguments. 
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 admissioni 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 and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who 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. 
The primary issues in this proceeding call for an analysis of the beneficiary's employment capacity. The first 
 i 
issue is whether the beneficiary was employed abroad in a primarily managerial or executive capacity, and the 
' The record shows that the Form 1-140 that is the subject of the present matter was initially denied in a decision dated 
July 29, 2005. However, the basis for that denial was erroneous. Accordingly, the petitioner's subsequent motion 
disputing the erroneous decision was granted via service notice dated August 22, 2005. The director has since issued 
another denial dated February 16, 2006. This latest decision is the subject of the appeal in this matter. 
Page 3 
second issue is whether the petitioner established that the beneficiary would be primarily employed in the 
United States in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1 101(;)(44)(~), provides: 
The term "managerial'capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(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 
 i 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 l(a)(44)(B) of the Act, 8 U.S.C. § 1 10 l(a)(44)(B), provides: 
~h6 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 organizati.on. 
The petitioner did not provide additional information or documents in support of the petition. Accordingly, 
on August 22, 2005, the director issued a request for additional evidence (WE) instructing the petitioner to 
provide the following information to assist in determining the beneficiary's employment capacities abroad and 
in the proposed position in the United States: 1) the beneficiary's position titles; 2) a list of the duties 
associated with each position as well as the percentage of time allotted to each of the listed duties; 3) the job 
Page 4 
titles, educational levels, and brief descriptions of the duties performed by the beneficiary's subordinates; 4) a 
statement describing the beneficiary's position within each entity's organizational hierarchy; and 5) a 
statement discussing the product and/or service providers within each entity.* 
The petitioner provided a response dated October 3, 2005. The response contained the following description 
of the beneficiary's proposed employment in the United States: 
[The beneficiary] has a senior and highest executive managerial [flull[-tlime positon in [the 
petitioning entity]. 
His [mlanagerial capacity [is] demonstrated by his in [sic] charge of direction, management 
coordination, activities and operation of the corporation. 
He exercises broad discretion over day-by-day operations. He has full responsibility for 
recruiting, hiring, training and dismissing employees, discipline promotion and 
remunerations. [The beneficiary] throughout his employment, as a key managerial employee 
with proprietary knowledge about the field of [aludio [vlisual [mlultimedia [plrojectors 
product lines, has demonstrated considerable skills and expertise in the area of decision 
making, establishing relations of dealerships with American companies . . . . He also 
implement[s] policies and adopt[s] strategies to improve business holding full authority over 
all executive decisions aimed to achieve profitability goals set by the main company. 
The petitioner provided the following percentage breakdowns for the proposed position: 
1. 
 Plan, [olrganize, [slupervise, [clontrol and [dlirect and direct [sic] [the petitioning entity] in 
accordance with the guidelines set by the company[.] (25%). 
2. 
 Responsible for the overall business and program management of the company[.] (1 5%). 
3. 
 Plan and review the annual budget of the company[.] (5%). 
4. 
 Properly keep accurate information in [the] [c]orporation's books and other records, reports 
and official documents to the managers and sto.ckholders[.] (5%). 
5. 
 Periodically assess the total services of the company, keeping the stock holders of the 
company informed of its progress, problems, needs, and make recommendations 
accordingly[.] (1 0%). 
< 
6. 
 Develop organizational revenue diversification and marketing plan[.] (10%). 
7. 
 Develop and plan new programs with managers and stockholders[.] (1 0%). 
2 
The director also previously issued an WE dated May 7, 2005 and a notice of intent to deny (NOID) dated June 27, 
2005. However, both notices lead to an improperly issued denial, which is now moot pursuant to the director's granting 
the petitioner's motion to reconsider the matter. In so doing, the director issued another RFE, which is addressed above. 
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8. 
 Follow up implementation of corporate policies[.] (5%). 
9. 
 Select, hire, train, and direct personnel, supervise employee[s] and subcontractors. (5%). 
10. 
 Maintain regular communication with the [plarent [clompany from Brazil giving monthly 
reports on the company operations and financial status[.] (10%). 
The petitioner also provided its organizational chart identifying three managerial employees, including a 
financial manager, an administrative manager, and a sales and marketing manager as the beneficiary's 
immediate subordinates. The financial manager is shown as having two subordinates including a purchaser 
and an accounts payable and receivable employee; the administrative manager is shown with three 
subordinates, one of whom is identified as an independent contractor; and the sales and marketing manager is 
shown with two immediate subordinates, one of whom is an independent contractor. The sales and marketing 
department is shown as having five sales representatives, four of whom are identified as independent 
contractors. 
With regard to the beneficiary's position abroad, the foreign entity provided the following statement: 
[The beneficiary] was the senior executive in [flull[-tlime managerial position, in charge of 
[the foreign entity]. He was responsible for planning, organizing, supervising, controlling 
and directing all commercial and administrative operations in that [rlegion of the company. 
In addition[,] he had the full responsibility for the staffing and supervision of the company, 
[sic] over which he had hiring, training and firing authority. He exercised wide latitude and 
discretionary authority over the work of the company's staffing. He was very familiar with 
the organization methods and procedures of our company. 
The following percentage breakdown of responsibilities was also provided: 
1. 
 Managing, directing, supervising and coordinating overall [rlegion operations and 
formulating policies to be followed[.] (20%). 
2. 
 Develop [rlegion plans and strategies, prepare reports, forecast performance and engage in 
' 
long-range planning and identifying business opportunities[.] (10%). 
3. 
 Oversee daily management of the [rlegion business and conducting general administration 
affairs of the company[.] (20%). 
4. 
 Supervising, coordinating and controlling the job performance of the staff and attend 
employees [sic] meeting[s.] (1 5%). 
5. 
 Direct negotiations with providers and approve purchase orders and contract terms[.] 
(10%). 
6. 
 Maintain regular communications with our [dlirectors, giving monthly reports on the 
company operations and financial status[.] (5%). 
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7. 
 Approve [the] budget and keep records of the [rlegion operations[.] (1 0%). 
8. 
 Select[ed], hire[d], training [sic] and fired managers and supervisors[.] (10%). 
The petitioner identified the job titles of the beneficiary's subordinates at the foreign entity and provided theii- 
brief job descriptions. The petitioner also stated that the foreign entity's service providers are its engineers, 
consultants, and computer experts. 
In a decision dated February 16, 2006, the director denied the petition concluding that the petitioner failed to 
establish duties for the foreign and U.S. entities as being primarily within a qualifying managerial or 
executive capacity. While the AAO concurs in the overall conclusion regarding the petitioner's eligibility, the 
director's underlying analysis contains errors that must be addressed. More specifically, the director 
commented on the beneficiary's responsibilities regarding staff recruitment and employee supervision as well 
as his overall discretion with regard to matters concerning his subordinate staff. Based on his observations 
regarding these responsibilities, the director concluded that the beneficiary's duties abroad and his proposed 
duties in the United States cannot be deemed to be primarily within a qualifying managerial or executive 
capacity. The AAO notes, however, that the responsibilities mentioned by the director merely demonstrate 
the beneficiary's discretionary authority with respect to the subordinate staff of both entities. Unless the 
record shows that the beneficiary spends a majority of his time overseeing a staff that is not comprised of 
managerial, supervisory, or professional employees, the director's comments have no factual basis. As 
observed in the present matter, there is no evidence that the beneficiary's subordinate staff, either abroad or in 
the United States, has been or would be comprised solely of non-managerial, non-supervisory, or non- 
professional employees. Additionally, the director's comments suggest that she may not have considered the 
possibility that the beneficiary's past andlor proposed positions may be those of a function manager or even 
within an executive capacity, neither of which would require employee supervision. 
Furthermore, when examining the executive or managerial capacity of the beneficiary, the Citizenship and 
Immigration Services (CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 
5 204.5(')(5). As such, the director's determination that the beneficiary's positions abroad and in the United 
States involvesthe performance of primarily non-qualifying tasks suggest that the petitioner provided a 
sufficiently detailed description of duties, which enabled the director to reach such a conclusion. However, 
the AAO observes that the statements and percentage breakdowns provided by the petitioner in this 
proceeding are primarily comprised of broad job responsibilities rather than specific job duties. For instance, 
with regard to the position abroad, the petitioner stated that the beneficiary managed, directed, supervised, 
and coordinated company policies, supervised the daily management of the company, and supervised the 
company staff, all of which cumulatively comprised 55% of the beneficiary's time. With regard to the 
beneficiary's proposed position in the United States, the petitioner stated that the beneficiary will plan, 
organize, supervise, control, and direct the U.S. company, be responsible for the petitioner's overall business 
and program management, and develop and plan new programs, all of which would cumulatively comprise 
50% of his time. With regard to both job descriptions the petitioner has used broad terminology, which fails 
to convey an understanding of the specific tasks that comprise the beneficiary's daily work schedule. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). While the petitioner has adequately 
illustrated the high degree of the beneficiary's discretionary authority, the record lacks a detailed explanation 
of the actual duties the beneficiary performed abroad and would perform in the United States on a daily basis. 
i 
Therefore, contrary to the director's observation, the record lacks sufficient information to render any 
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conclusion as to the nature of tasks the beneficiary primarily performed abroad and would perform for the 
U.S. petitioner. Accordingly, the director's erroneous comments are hereby withdrawn. 
Notwithstanding the director's flawed reasoning, the record suggests that the petitioner has failed to establish 
that the beneficiary's foreign or proposed employment fits the parameters of qualifying managerial or 
executive capacity. As stated above, the petitioner has failed to provide adequate descriptions of the 
beneficiary's actual daily tasks. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter 
of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103. 
Additionally, the petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101(a)(44)(B) of the Act. Rather, the petitioner uses both terms interchangeably making it impossible to 
determine which of the two definitions should be applied. A beneficiary may not claim to be employed as a 
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 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. Counsel perpetuates the confusion further, referring to the beneficiary on appeal as "a high level 
executive and manager." While counsel adequately conveys the beneficiary's key role within each of the 
organizations, questions still remain as to what duties the beneficiary primarily performed abroad and what 
duties he would primarily perform during his employment for the petitioner. 
1 
Finally, counsel refers to the petitioner's two previously approved L-1A petitions naming the same beneficiary 
as in the instant matter. With regard to the beneficiary's L-1 nonimmigrant classification, 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. $ 1101(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. Cj $9 204 and 214 of the Act, 8 U.S.C. $$ 1154 and 1184; see also $ 3 16 of the 
Act, 8 U.S.C. $ 1427. 
In addition, 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. 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 immigrant 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 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 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 
Page 8 
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). 
Moreover, 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. 51 (2001). 
Additionally, counsel refers to the petitioner's organizational chart, which identified 16 employees including 
independent contractors. It is noted, however, that the record lacks evidence of the petitioner's employment 
of any of the independent contractors. While the petitioner provided tax documentation to account for other 
employees named in the organizational chart, the record does not contain documentation establishing the 
employment of independent contractors. 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. 
158, 165 (Comm. 1998) (citing Matter of Treasure Cra9 of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). As the record lacks documentation to establish the petitioner's employment of independent 
contractors, the AAO questions the petitioner's overall ability to relieve the beneficiary from engaging in 
primarily non-qualifying tasks. 
Accordingly, based on the evidence provided, it cannot be found that the beneficiary was employed abroad 
and would be employed in the United States in a primarily managerial or executive capacity. 
Lastly, the record supports a finding of ineligibility based on at least one additional ground that was not 
previously addressed in the director's decision. Namely, the record contains a total of three stock certificates 
two of which indicate that they are Certificate No. 1. The first Certificate No. 1 was issued by the petitioner 
on September 7, 1999 and was submitted, along with Certificate No. 2, in support of a prior Form 1-140, 
which the petitioner filed in 2004. Certificate No. 1 shows that the beneficiary acquired ownership of 3,749 
shares of the petitioner's stock and Certificate No. 2 indicates tha 
owned the remaining 3,751 of the petitioner's issued shares of which there were a total of 7,500. The 
second Certificate No. 1 was also issued by the petitioner and was submitted in support of the Form 1-140, 
filed on April 1, 2005, which is the subject of the present matter. Unlike the first Certificate No. 1, the more 
recent stock certificate was issued on January 18, 2005 and shows that 3,825 shares were issued to Sisinfo 
Consultores Asociados, Ltda., the beneficiary's foreign employer. Since the petitioner is only authorized to 
issue 7,500 shares, it would be impossible for the more recent Certificate No. 1 to coexist with the previously 
issued Certificate No. 2, since that would result in the issuance of more than the authorized number of shares. 
Furthermore, the existence of two different No. 1 stock certificates, both of which indicate that they were the 
first to be issued, gives rise to serious doubt as to the authenticity of either document and, consequently, the 
petitioner's claimed ownership. 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). The record contains no documentation to suggest that the 
considerable inconsistency with regard to the petitioner's ownership has been resolved. 
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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). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.