dismissed EB-1C Case: Business

Identifying data deleted to 
prevent clearly W1warranted 
inwsi<>n of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Securit) 
lJ. S. Citizenship and Immigration S~rviu:~ 
Qfllce a/Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: OFFICE: TEXAS SERVICE CENTER Date: MAR 0 2 2011 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)( I )(C) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)( I )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concernin)! your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by tiling a Form 1-290B, Notice of Appeal or Motion. 
The fee for a Form 1-290B is currently $585. but will increase to $630 on November 23, 2010. Any appeal or 
motion filed on or after November 23, 2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. 
§ I 03.5(a)( I lei) requires that any motion must be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Thank you, 
Perry Rhew 
tief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The preference visa pet.tlllil \\,,' denied by the Director, Texas Service Center. The 
petitioner subsequently filed a motion to reopen and reconsider. The director then entered two separate and 
contradictory decisions. The decision ofthe director denying the petition will be affirmed. 
The procedural history of this case is extremely confused. In an unusual and inappropriate procedural twist. 
the director appears to have entered two separate decisions, both denying and approving the petition.' On 
November 17, 2009, the director denied the petition on multiple grounds. On December 21, 2009, the 
petitioner tIled the motion to reopen and reconsider. On or about March 3, 20 I 0 the director reviewed the 
points covered in the initial denial and addressed the arguments that the petitioner put forth in the motion. 
The director determined that the petitioner failed to establish eligibility for the benefit sought and certitled the 
decision to the AAO for review. The record till1her shows that on March II, 20 I 0, the director issued a 
separate decision on the petitioner's motion. This matter as well has been certified to the AAO for review. 
Although the director recommends withdrawal of the prior decision on the basis of the finding that the 
petitioner has overcome the grounds cited for denial. the AAO notes that the director's second decision also 
indicates that the petitioner failed to establish a critical portion of the requisite qualifying relationship. 
The director may approve a petition only if he detennines that the facts stated in the petition are true. Section 
204(b) of the Act. The director does not have any authority to confer an immigration benefit when the 
petitioner fails to meet its burden of proof. See section 291 of the Act. 
As the director's order and analysis in that decision are not consistent with one another, the AAO will 
withdraw the director's decision on motion and aftlrm the March 3, 2010 decision in which the director 
recommended that the petition be denied. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its president and director of 
operations. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)( I )(C) of the Immigration and Nationality Act (the Act). 8 U.S.c. 
§ I IS3(b)( I )(C), as a multinational executive or manager. In the March 3, 2010 decision that the director has 
certitled to the AAO, the director denied the pclition based on the following three independent grounds of 
ineligibility: I) the petitioner failed to establish that it has a qualifying relationship with the beneficiary's 
foreign employer; 2) the petitioner tailed to establish that the U.S. and foreign entity are actively engaged in 
doing business; and 3) the petitioner failed to c,.(;;h 1;sl1 that it would employ the beneficiary in a managerial or 
executive capacity. 
On motion, counsel disputed the director's adverse finding with regard to the issue of a qualifying 
relationship and submitted evidence in support of his argument. It is noted that, while the petitioner was 
allowed an opportunity to submit further evidence addressing the additional findings that were issued in the 
1 While the director's conflicting decisions were inappropriate, the nature of the petition leads the AAO to 
conclude that it was appropriate for certification, rather than requiring the petitioner to tIle an appeal with fee. 
The certification process is intended for cases with unusually complex or novel issues of law or fact. 8 C.F.R. 
§ 103.4(a)(I). Given the complexity of the claimed relationships between multiple multinational 
corporations, and the novel issue of bearer stock certificates, the director properly certified the decision to the 
AAO for review. 
Page 3 
March 3, 2010 decision, there is no indication that the record has been supplement with additional evidence or 
information. Therefore, the AAO will issue its decision based on the record as presently constituted. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I"'''il employed for at least I year by a finn 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 specitic 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 tile a petition on Form 1-140 for classification of an alien under section 
203(b)(\ )(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 tirst issue in this proceeding is whether the petitioner has a qualii}'ing relationship with a foreign entity. 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
AtJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(8) 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; 
• • • 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Page 4 
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, bUl;" :acl controls the entity. 
In support of the Form 1-140, the petitioner submitted a letter dated March 4, 2009 in which it indicated that it 
is 100% owned by The petitioner further stated that while _was 
previously owned the beneficiary's prior employer in Brazil, Swift is currently 
owned by another Brazilian entity. The petitioner also provided the following 
supporting documents: 
I. A copy of its articles of incorporation, which was executed on February 3, 1995. Article III 
of the document showed that the petitioner was authorized to issue 1,000 shares of stock with 
a par value of one dollar per share; 
2. A copy of stock certificate No.4, which was executed on February 7, 1995, showing that 
.was the recipient of 1,000 shares of the petitioner's stock; 
3. _ articles of association showing that the company was authorized to issue 5,000 shares 
of its stock with a par value of one dollar per share; 
4. ~hare certificate Nos. I and 2, each representing 2,500 shares on March 14, 1996, 
indicating that "the bearer" was the holder of the stock; and 
5. _share register reiterating the information conveyed in certificate Nos. I and 2. 
On August 8, 2009, the director issued a request for additional evidence (RFE), instructing the petitioner to 
supplement the record with further documents to establish the existence of a qualifying relationship with a 
foreign entity per regulatory requirements. Namely, the petitioner was asked to provide proof that the foreign 
entity paid for its shares in the U.S. entity, all the stock certificates issued by the U.S. entity to the present 
date, and the U.S. entity's stock ledger. 
In response, counsel submitted a letter dated September 8, 2009, claiming that the petitioner 
1,500 shares t~ Counsel further claimed that. issued all of the petitioner's shares to 
employer in Brazil, and (h:;' ;:1 2002 Swift issued 500 shares of the' to 
a company that was purportedly 100% owned b~Counsel stated that in 2007, 
its shares of the petitioner's stock back to the and that subsequent to this transaction, 
issued its bearer shares Counsel asserted that_new 
ownership ensured that a qualifying relationship would continue to exist between the U.S. petitioner and a 
foreign entity. The petitioner resubmitted its articles of incorporation and stock certificate No.4 and also 
provided the following additional documents: 
-Page 5 
1. 
the document. 
2. A copy ~ertificate NO.5 issuing 500 shares of its stock on May 6, 
2002 to __ The word "Cancelled" was written diagonally across this 
document. 
3. 17, 2007, titled "Receipt," memorializing an agreement between the 
petitioner and sell back to the petitioner the 500 shares of stock that were 
previously issued The agreement was based upon the petitioner paying a 
total of $250,000 for the 500 shares. 
4. A copy of stock certificate No.6 showing that the petitioner issued 500 shares of its stock to 
~n May 6, 2002. 
5. A copy of the petitioner's stock transfer ledger, listing a total of six stock transfer 
transactions. The first two transact;0l1S dated back to February 1995 and involved the 
petitioner issuing 1 .. 000 shares of its stock to _ via stock certificate No.4 and another 
500, also issued to via stock certificate No.6. transaction was recorded as 
the issuance of 500 shares of the petitioner's stock in May 2002 via stock 
certificate No.5 following by cancellation of stock certificate No.5 in April 2007, which 
resulted in the 500 shares being transferred back to the petitioner. Three additional 
transactions are listed on page two of the stock ledger, begi~ith two transactions that 
are shown as having taken place on May 6, 2002, including_ receipt of 500 shares of 
the petitioner's stock following the surrender of stock certificate No.4, as well as an 
unidentified transaction in the amount of $250,000 in exchange for 500 shares of stock. The 
recipient of these shares was not named and the date of the latter transaction was not 
provided. The remaining transaction is ,:,,'\v1I as having taken place on April 17,2007 in the 
amount of $250,000, resulting in a purchase by the treasury that is shown as having been 
immediately cancelled. The petitioner did not indicate that any stock certificates were issued 
to memorialize the two latter transactions. 
6. A document titled "Written Consent of Sole Director of [the petitioner] in Lieu of 
Organizational Meeting" indicating that.purchased 1,000 shares of the petitioner's stock 
in exchange for payment 01"$1,000. The document was executed on February 7,1995. 
7. Copies o~bearer shareholder certificate Nos. I and 2 and corresponding stock registry 
a document titled "Atlid,cv;1 of Bearer," dated September 8, 2009 and signed 
by stated that he is the majority shareholder o~ 
the company that is the 100% owner and bearer of_outstanding shares. 
-Page 6 
In a decision dated November 17, 2009, the director denied the petItIon concluding that the requisite 
qualifying relationship does not exist. The d,rector based this conclusion on the finding that the U.S. 
petitioner and the beneficiary's "are unrelated business entities." The petitioner noted that 
while the petitioner claimed the entity that currently owns the petitioner, 
was previously owned the that employed the beneficiary, the petitioner claims that. is 
currently owned The director questioned the probative value of the affidavit, 
observing that the document lacked a notary stamp and a witness signature. In light of the diminished 
probative value of the affidavit, the director concluded that the petitioner failed to establish the claimed 
parent-subsidiary relationship with_ 
Following the director's denial, the petitioner filed a motion to reopen and reconsider in support of which 
counsel submitted a letter in which he reiterated prior statements with regard to the petitioner's earlier 
relationship with the beneficiary's foreign cmplo~d the change that has resulted in a more recent 
relationship that was allegedly formed as a result o~issuing its bearer shares to _ The petitioner 
also submitted a document titled "Supplement Affidavit of Bearer." While the content of the latter document 
was the same as that contained in the prior atlidavit, the new affidavit included the signatures of two 
witnesses as well as a notary stamp and thus cured the deficiencies that diminished the probative value of the 
earlier affidavit. The new atlidavit restated that Swill is the petitioner's directr owner and that_is the 
indirect owner by virtue of its ownership o~ 
In a decision dated March 11, 2010 the director erroneously found that the petitioner overcame the grounds 
stated for denial. .' oner failed to establish that_'has purchased, 
controlled, or ich is the company that is listed as owning 1,000 
shares of [the petitioner]." As the director has certified this decision to the AAO, a comprehensive review of 
the record has been conducted to reach a new conclusion. 
First, with regard to the director's finding that the petitioner had overcome the grounds for denial, the director 
erred in failing to acknowledge that the earlier decision issued multiple findings and that not all adverse 
findings had been overcome by the petitioner's subsequent submissions. Specifically, rather than overcoming 
the main ground that was the basis for a finding of ineligibility, the petitioner merely overcame an adverse 
evidentiary finding that concerned the documentary deficiencies of the initially submitted affidavit. A review 
of the director's original decision shows that the director made an adverse finding with regard to the probative 
value of the affidavit due to a missing notary sl2'no and witness signature. While the AAO acknowledges 
that these deficiencies were indeed rectified with the submission of a second atlidavit, which contained both a 
notary stamp and two witness signatures, the primary basis for a finding of ineligibility was the petitioner's 
failure to establish that it currently has a qualifying relationship with the foreign entity that previously 
employed the beneficiary abroad. The petitioner's new submissions in support of the motion did not 
overcome this key adverse finding. 
Furthermore, the petitioner readily admitted and provided several documents that indicate that_ 
through its ownership of_ the petitioner's direct parent entity, is the petitioner's true owner. According 
to the petitioner, the beneficiary's foreign employer surrendered its ownership of the petitioner and was 
therefore not the parent entity at the time the Form 1-140 was filed. The AAO notes that, regardless of the 
sutliciency of the documentation establishin~ as the petitioner's true owner and regardless of any 
Page 7 
evidence that the beneficiary's foreign employer once owned the U.S. petitioner, the requisite qualifying 
relationship must exist at the time of filing in order to establish eligibility. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comm. 1971). In the present matter, neither the evidence of record nor the petitioner's own 
statements indicate that such a relationship c' i,ted at the crucial time. Therefore on the basis of this 
conclusion, the AAO hereby affirms the director's original denial of the petition. 
The record further shows that, in addition to the director's decision regarding the petitioner's motion to reopen 
and reconsider, the director issued another decision on March 3, 20 I 0, which was also certified to the AAO. 
Here again, the director addressed the issue of the petitioner's qualifying relationship with a foreign entity. 
Although the director duly noted the findings of the original denial, which properly focused on the petitioner's 
relationship, or lack thereof, with the beneficiary's foreign employer, it strayed from the proper analysis in the 
more recent decision, focusing instead on the sufficiency of the evidence establishing common ownership and 
control between the petitioner Specifically, the director determined that the bearer shares, 
which were issued to by the purported direct owner of the petitioning entity, were not 
sufficient to establish ownership and control o~and therefore failed to establish _ 
indirect ownership of the petitioner. The director determined that by its very nature, a bearer share, which 
bestows ownership upon any party that physically holds the certificate and does not officially register and 
track the owner of the stock, lacks the regulation and control to which common shares are subject. 
While the director's analysis with regard to the definition and significance of a bearer share certificate is 
generally correct, the AAO finds that such analysis was unnecessary, as it is ultimately irrelevant to the matter 
at hand. Instead, the goal is to determine whether the petitioner had a qualifying relationship with the 
beneficiary's foreign employer at the time of filing and whether such a relationship, if previously existed, 
continues to exist. 
Reverting back to the previous discussion of this issue, the AAO again notes that the record lacks evidence to 
establish that the petitioner had a qualifying relationship with the beneficiary's foreign employer at the time of 
filing. According to the petitioner's own claims, that relationship, even if previously exited, ceased to exist 
prior to the filing of the Form 1-140 when _ the beneficiary's foreign employer, relinquished its 
ownership interest in the petitioning entity~lationship that may have been formed and which may 
currently exist between the petitioner and _ cannot be deemed as a qualifying relationship, as the 
petitioner does not claim tha~as the beneficiary's foreign employer. While_ ownership of 
the petitioning entity, if established, would qualify the petitioner as a multinational entity based on the 
definition found at 8 C.F.R. § 204.5U)(2), the question of whether or not a qualirying relationship exists is a 
separate issue that requires the existence of COlllmon ownership and control between the petitioner and the 
beneficiary's foreign employer. See Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also MatterojSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm. 1982). 
As these key elements of common ownership and control between the petitioner and the beneficiary's foreign 
employer have not been shown to have existed at the time of filing, the AAO cannot conclude that the 
requisite qualirying relationship has been established. Accordingly, while the AAO affirms the director's 
Page 8 
ultimate decision to deny the petition, it finds that the basis for such conclusion was misguided and not in line 
with the relevant regulatory requirements. 
The next two issues require an assessment of the petitioner's business activity as well as the business activity 
of the foreign entity that shares common and control with the petitioner,_ The record does 
not establish the beneficiary's prior employer in Brazil, has been doing 
business. 
First, the AAO will review the record to determine whether _ and the petitioner are doing business 
such that the petitioner meets the definition of multinational. As defined at 8 C.F.R. § 204.5Gl(2), a 
lI1ultinational entity is one that conducts business in two or more countries, one of which is the United States. 
Additionally, doing business is defined as "the regular, systematic, and continuous provision of goods and/or 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or office." Jd. 
While the record shows that the petitioner provided promotional material and financial documents belonging 
to both entities, such documents do not establish that either entity is currently doing business. The following 
additional documents were also submitted in support of the petitioner's motion: 
I. Untranslated emails between~nd the petitioner accompanied by 
and a bank wire transfer showing payment of the amount indicated in the 
from March I I, 2009. 
2. Emails from September 2009 establishing the foreign entity making arrangements for 
shipments of business related purchases. 
3. The foreign entity's purchase invoice dated September 25, 2006 for equipment purchased 
and bank balance confirmation establishing the foreign entity's payment for the purchase. 
4. Emails and purchase/sales invoices from October, November, and December 2009 
regarding purchases made by the petitioner. One invoice from December 2009 shows the 
petitioner as the party being billed for merchandise that was shipped to the foreign entity. 
5. A proforma purchase invoice dated October 14, 2009, two wire transfer documents 
showing payments made towards the invoice balance, and an invoice and packing list from 
November 30,2009 showing the petitioner as the purchasing party. 
First, with regard to the foreign emails that were not accompanied by certified English language translations, 
the AAO cannot determine whether the untranslated evidence supports the petitioner's claims. See 8 C.F.R. 
§ 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any weight in this 
proceeding. 
Notwithstanding this deficiency, the above documentation is not sufficient to establish that the U.S. and 
foreign entity were engaged in "the regular, systematic, and continuous provision of goods and/or services" at 
the time the Fonn 1-140 was filed. While the AAO acknowledges the March 11,2009 invoice, a single document 
Page 9 
is simply not sufficient to establish ongoing business transactions for either entity. The AAO further notes 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. Matter of Katigbak, 14 I&N Dec. at 49. 
As such, the invoices that represent business transactions that took place subsequent to the filing of the 
petition are not probative, as they do not establish that the petitioner and the foreign entity were doing 
business at the time of filing. Similarly, the foreign entity's invoice from 2006, which is evidence of a 
business transaction that took place several years prior to the filing of the petition, also lacks probative value, 
as it does not establish that the entity was doing business at the time of filing. 
In summary, while some of the submitted documents establish some random business actIvIty by both 
entities, these documents are not sufficient to establish that such business activity was ongoing on a regular, 
continuous, and systematic basis. It therefore follows that the petitioner similarly failed to establish that it 
had been doing business during the one year period prior to the filing of the Form 1-140, per 8 C.F.R. 
§ 204.5(j)(3)(i)(0). 
Additionally, the AAO notes that even if the petitioner had submitted sufficient evidence to establish that it 
and Geotech were both doing business at the time of filing, USCIS may not overlook the fact that Geotech is 
not the foreign entity that employed the beneficiary abroad. This issue is separate and distinct from the issue 
of whether the petitioner is a multinational entity. Merely establishing that the petition fits the definition of 
multinational is not sufficient to meet eligibiii,y requirements. As previously stated, the petitioner must 
establish the existence of a qualifying relationship with the foreign entity that employed the beneficiary 
abroad and such a relationship must exist at the time of filing. As concluded above, the petitioner has failed 
to provide sufficient evidence to establish that it meets the definition of multinational or that it has been doing 
business in the United States within the time and in the manner described at 8 C.F.R. § 204.5(j)(3)(i)(0). 
The remaining issue in this proceeding is whether the petitioner established that it would employ the 
beneficiary in the United States in a qualifYing managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.s.c. § IIOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 
Page 10 
(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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization 10 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. 
In the petitioner's March 4, 2009 support letter, the petitioner stated that the beneficiary formulates and 
implements company policies and sets long-range goals and objectives. The petitioner provided the following 
description ofthe beneficiary's proposed employment: 
[The beneficiary] negotiates contracts with Brazilian companies for the sale of computers and 
computer parts. [He] directs and manages the flow of products being imported and exported 
in order to ensure their smooth and efficient handling. 
[The beneficiary] is responsible for formulating operational goals and policies. He reviews 
activity reports and financial statements to determine progress and status in attaining the 
company's operational objectives and maximum profitability. He revises the objectives and 
plans in accordance with operational 11''''e', . . .. He formulates, directs and analyzes the 
operational activities, programs and budgets[,] oversees the company's operations and ensures 
that maximum use of equipment, facilities and personnel are being utilized. [The beneficiary] 
confers with other executives and managers to establish operations objectives, develop 
organizational operation policies and [to] coordinate functions and operations between the 
Brazil and Miami offices .... He approves expenditures to acquire equipment .... 
[The beneficiary]'s primary responsibility is directing and managing the business operations I 
the United States and coordinates all business transactions with the company's parent in 
Brazil. As [p ]resident[,] he presides at all corporate meetings and ensures that all orders and 
resolutions are carried out into effect. [The beneficiary] has ultimate responsibility for 
decisions affecting the overall management and operation of [the petitioner]. He consults 
with managerial staff regarding departmental issues .... 
-Page II 
[The beneficiary),s is responsible for analyzing supply and pricing patters and [for] evaluating 
product trading. He exercises wide latitude and discretionary decision making and, through 
his subordinate personnel, identifies and develops trading relationships with suppliers, 
develops and implements strategies ,,, J;,CliS on customer base and seeks and evaluates 
acquisition opportunities. [The beneficiary] is in charge of managing vendor/supplier 
contracts and freight forwarder company contracts. 
[The beneficiary] revises, creates and implements new systems establishing better procedures 
and quicker company response to our customers['] orders and request[ s] for service. He 
recommends solutions to solve administrative and personnel problems which are essential 
and beneficial to the company's multi-national operations. He is responsible for the hiring 
and termination of employees. 
In the RFE, the director instructed the petitioner to provide supplemental information about the beneficiary's 
proposed U.S. employment, including a list of the beneficiary's job duties, the percentage of time the 
beneficiary would spend performing each task, and the job descriptions, job titles, and educational levels of 
the beneticiary's subordinates. The petitioner was also asked to provide an organizational chart illustrating its 
current organizational structure with the names of employees and their positions clearly depicted in addition 
to the beneficiary's proposed position within the hierarchy. 
In response, the petitioner restated the job description previously provided, which did not include a list of 
specific job duties and corresponding time constraints to show how the beneficiary's time would be allocated 
among specific tasks. It is noted that 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). The petitioner did, however, 
include the requested organizational chart, whici, iilustrated a three-tier structure headed by the beneficial)'. 
The chart depicted three direct subordinates of the beneficiary, including a general manager, a sales manager, 
and an RMA manager. The general manager was depicted as having a logistics coordinator as his direct 
subordinate; the sales manager was shown as having a sales person as her direct subordinate; and the RMA 
manager was shown as overseeing the work of technicians. The chart did not indicate the number of positions 
employed or the names of any technicians. Lastly, while the chart includes external contractors in the third­
tier of the hierarchy, the petitioner did not specify what types of contractors would be used, what types of 
services the contractors would perform, or the names of individuals or companies that would be perfonning 
the contracted services. 
In the decision that has been certified to the AA() the director noted the petitioner's failure to comply with the 
RFE request for a list of specific job duties and the time constraints that correspond to each duty. The 
director found that the petitioner failed to "enhance an understanding of the precise daily duties the 
beneficiary performs" thereby precluding USCIS from being able to conclude that the primary portion of the 
beneficiary's time would be devoted to tasks within a qualifying managerial or executive capacity. 
Although the petitioner was allowed a 30-day briefing period in which to submit additional documents to 
address the director's adverse findings, the petitioner did not supplement the record with any further 
documentation regarding the beneticiary's proposed job duties. 
Page 12 
In reviewing the petitioner's submissions, the AAO agrees with the director's findings. First and foremost, the 
AAO cannot overlook the petitioner's failure to comply with the director's request for a more definitive 
description of job duties, particularly where the original description that the petitioner submitted was so 
vague. When examining the executive or managerial capacity of the beneficiary, the USCIS will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.5U)(5). 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 (E.D.N.Y. 1989), affd, 905 F.2d 41 (La. Cir. 1990). 
In the present matter, the petitioner paraphrased portions of the relevant statutory definition repeatedly 
throughout the job description, focusing heavily on the beneficiary's authority with regard to fonnulating and 
implementing company policies and setting goals and objectives. However, these vague statements fail to 
convey a meaningful understanding of the beneticiary's daily activities. It is noted that the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. at 1108. 
The petitioner failed to specify what actual tasks the beneficiary perfonned in his effort to fonnulate, direct, 
and analyze operational activities; nor did the petitioner explain how the beneficiary directs, manages, and 
coordinates business transactions. The petitioner also failed to explain how fonnulating the company budget, 
developing trading relationships with suppliers. Jc·,eloping strategies to focus on the customer base, and 
managing vendor/supplier and freight forwarding contracts quality as managerial or executive tasks. There is 
no indication as to the amount of time spent performing these non-qualitying tasks. 
In sum, the petitioner failed to specity what managerial or executive tasks the beneficiary would perfonn, nor 
did the petitioner provide the necessary information that would .enable the AAO to conclude that the primary 
portion of the beneficiary's time would be spent perfonning tasks within a qualitying capacity. 
The AAO notes that USCIS approved other petitions that had been previously filed on behalf of the 
beneficiary as both an L-l A and as an H-I B2 The director's decision does not indicate whether he reviewed 
the prior approvals of the other nonimmigrant petitions. 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 l&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). 
, USCIS records indicate that the beneficiary has been the recipient of multiple Hand L petition approvals 
since 1996. The AAO notes that USCIS denied ~i. kast one petition However, at the time 
of filing the present 1-140 visa petition and 1-485 application to adjust status, the beneficiary had been granted 
H-I B status for over seven years and five months. Prior to that period of stay as an H-I B, USC/S had granted 
multiple L-I A petitions. But see 8 C.F.R. § 214.2(h)( 13)(iii)(A) (prohibiting an H-I B nonimmigrant from 
seeking readmission, extension of stay, or change of status when he or she has spent 6 years in the United 
States as an Hand/or L nonimmigrant). 
Page 13 
Furthermore, 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 (ED. La.), qffd, 248 F.3d 1139 (5th Cir. 
200 I), cert. denied, 122 S.C!. 51 (200 I). 
Accordingly, 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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.