dismissed EB-1C Case: Business Management

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Setvices 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
F[LE: OFF[CE: NEBRASKA SERVICE CENTER Date: 
SEP I 4 2010 
[NRE: 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 Nationa[ity Act, 8 U.s.C. § 1153(b )(1 )(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 concerning your case must be made to that office. 
[f 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 filing a Form [-290B, Notice of Appea[ or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen . 
.. 
-. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Commonwealth of Pennsylvania corporation that seeks to employ the beneficiary as its 
president. 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. 
§ 1153(b)(I)(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to respond to the 
previously issued request for additional evidence (RFE) in which the petitioner was instructed to provide 
evidence establishing that (I) the beneficiary was employed abroad within a qualifying managerial or 
executive capacity per 8 C.F.R. § 204.5G)(3)(i)(B); (2) the petitioner has a qualifying relationship with the 
beneficiary's foreign employer per 8 C.F.R. § 204.5(j)(3)(i)(C); and (3) that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity per 8 C.F.R. § 204.5(j)(5). On 
appeal, the petitioner submits evidence addressing the items that were previously requested in the RFE. 
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 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)( 1 )(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. 
In the present matter, the only supporting evidence the petitioner provided at the time of filing was the 
beneficiary's 2006 IRS Form W-2, a letter ITom the petitioner's accountant verifying the beneficiary's 
employment with the petitioner since September 2004, and the petitioner's 2006 IRS Form 1120S. 
Page 3 
Accordingly, in an RFE issued on December 4, 2008, the director instructed the petitioner to supplement the 
record with evidence establishing that the beneficiary was employed abroad and would be employed in the 
United States within a qualifying managerial or executive capacity, as well as evidence establishing that the 
beneficiary's foreign and U.S. employers have a qualifying relationship. The petitioner was expressly asked 
to provide a detailed list of job duties for each of the beneficiary's positions and to assign a percentage of time 
the beneficiary allotted and would allot to each of his past and proposed job duties. The petitioner was also 
asked to provide organizational charts for both entities, illustrating each company's staffing hierarchy and the 
beneficiary's placement therein. 
Although the petitioner acknowledged the RFE and provided some documentation in response, the petitioner 
was generally non-responsive to the key issues addressed in the director's notice. In fact, the only documents 
submitted by the petitioner included a letter dated February 23, 2009 from Senator Arlen Specter asking that 
the petition be given "due consideration," the petitioner's 2007 tax return, the beneficiary's 2007 and 2008 IRS 
Form W-2s, and a letter explaining the monetary loss that was documented in the petitioner's 2007 tax return. 
The petitioner did not provide any of the requested information regarding the beneficiary's job duties with 
either entity, either entity's organizational chart, or any documentation establishing that a qualifying 
relationship exists between the beneficiary's foreign and U.S. employers. 
Accordingly, in reviewing the record, the director took note of the petitioner'S failure to respond to key 
portions of the RFE and issued a decision dated March 18,2009 denying the petition. The director concluded 
that the petitioner failed to establish that it meets the regulatory requirements described at 8 C.F.R. §§§ 
204.5(j)(3)(i)(B), (C) and (5). The director properly relied on 8 C.F.R. § 103.2(b)(l4), which states that 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition, and denied the petition based on the petitioner's failure to address key points of the RFE. 
The regulations state that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. §§ 103.2(b)(8) and (12). As stated above, the petitioner's failure to comply with the director's 
request for evidence shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Jd. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal will 
be dismissed. 
Furthermore, while not discussed in the denial, the AAO concludes that the record does not support a finding 
of eligibility based on at least one additional ground. Specifically, 8 C.F.R. § 204.5(j)(3)(i)(D) states that the 
petitioner must establish that it has been doing business for at least one year prior to filing the Form 1-140. 
The regulation at 8 C.F.R. § 204.5(j)(2) states that doing business means "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." Although the petitioner submitted its tax returns for 2006 and 2007 as well as a letter 
· . 
Page 4 
from Senator Arlen Specter all of which confirm the existence of the petitioning entity, these documents are 
insufficient as a means of determining that the petitioner has conducted business on a "regular, systematic, and 
continuous" basis during the one-year period prior to the date the petition was filed. See id. 
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 (ED. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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. 
As a final note, service records show the petitioner's previously approved L-I employment of the beneficiary. 
However, the AAO notes that 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. USCIS is not required 
to assume the burden of searching through previously provided evidence submitted in support of other 
petitions to determine the approvability of the petition at hand in the present matter. The prior nonimmigrant 
approvals do not preclude USCIS 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 USCIS will approve an immigrant petition filed on behalf of the same beneficiary. 
USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-l 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 
(DD.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (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 
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 USCIS 
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). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.C!. 51 (2001). 
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.