dismissed EB-1C Case: Chemicals

id&ifiing data deleted tB 
Department of IIomeland Security 
20 Mass Ave , N.W , Rm 3000 
prevent clearly unw-ted 
 Washington, Dc 20529 
invasion of personal privaq 
 U. S. Citizenship 
and Immigration 
Services - 
PUBLIC COPY 
FILE: - Office: TEXAS SERVICE CENTER Date: FEB 2 2 2007 
SRC 06 162 52062 
IN RE: Petitioner: 
Beneficiary: 
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 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
fi Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant petition to classify the beneficiary as a multinational manager or executive 
pursuant to section 203(bf(l)(~) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 153(b)(l)(C). 
The petitioner is a corporation organized under the laws of the State of Delaware that is engaged in the 
production of specialty chemicals for industry and agriculture. The petitioner seeks to employ the beneficiary 
as its global development manager. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary had 
been employed by the foreign organization in a primarily managerial or executive capacity. The director also 
observed that the beneficiary would not be employed by the United States company in a primarily managerial 
or executive capacity. 
{ 
On appeal, counsel for the petitioner contends that the beneficiary's employment in both the foreign and 
United States entities encompasses managing the essential hnction of research and development in the 
companies' specialty products business departments, during which he exercised a wide degree of discretionary 
authority over the function's day-to-day operations. Counsel submits a brief and 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. 
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Page 3 
The first issue in this proceeding is whether the beneficiary was employed by the foreign entity in a primarily 
managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional: 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
1 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; fi 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
\ (iii) 
 Exercises wide latitude in discretionary decision-making; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the Form 1-140 on April 26, 2006. In an attached letter, dated March 23, 2006, the 
petitioner claimed that the beneficiary's employment as the foreign entity's zone development manager from 
January 2000 through December 2001 was primarily managerial in nature. The petitioner stated: 
In th[e] position [of zone development manager], [the beneficiary] managed the 
development and implementation of the [research and development] programs for the 
[specialty products business (SPB)] department in the AsiaIPacific region. He also 
Page 4 
coordinated and directed the development function for the company's [slpecialty products 
in Australia and New Zealand. In addition, he managed the company's Centre of 
Excellence for Timber Preservation and provided technical support to the Centre of 
Excellence for Vector Control. 
The director issued a request for evidence on July 25, 2006 requesting a statement from the petitioner 
addressing the following details of the beneficiary's foreign employment: (1) the beneficiary's job title; (2) the 
job duties performed by the beneficiary and the amount of time the beneficiary devoted to each task; (3) the 
employees, including managerial or supervisory employees, who reported to the beneficiary; (4) a brief 
description of the job duties performed by each of the beneficiary's subordinate employees; (5) the 
qualifications necessary for the beneficiary's position; (6) the level of authority held by the beneficiary and 
whether it qualified as a senior level position in the foreign organization; and (7) the employees who 
performed the sales of the foreign organization. The director also asked that the petitioner specify the 
beneficiary's position in the foreign company's organizational hierarchy. 
Counsel for the petitioner responded in a letter dated September 8, 2006. In an attached letter, dated 
September 7, 2006, the petitioner outlined the following job duties performed by the beneficiary as the 
foreign entity's zone development manager: 
Manage product development and regulatory programs for pesticides for Australia & 
New Zealand to assure continued multiple uses for products while developing safe and 
governmentally approved products[.] 
Manage safe use of pesticides through implementation of the [sic] 
Manage technical service & support in the AsidPacific region (Indonesia, Malaysia, 
Thailand, China, India, Japan) with broad knowledge of markets, pests, regulatory 
requirements and business practices. 
Manage and co-ordinate business development within the AsiaJPacific region[.] 
Project management for specific region wide development - AsidPacific Region[.] 
Team Leader - Global Center of Excellence for Timber Preservation 
Managed a development budget of $US 1.5 MM 
The petitioner noted that the beneficiary's time was allocated among the following responsibilities: 
Product Development (25%) 
Technical Service & support (15%) 
Business Development (30%) 
Project Management (20%) 
Timber Preservation Center of Excellence (10%) 
-7 
The petitioner explained that in this "mid level" position, the beneficiary possessed the authority to hire and 
fire his subordinate employee, who occupied the position of market development officer. 
In a decision dated October 20, 2006, the director concluded that the petitioner had not demonstrated that the 
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. The director 
addressed the beneficiary's former employment in a "mid level" rather than senior position, and noted the 
"vague" description offered by the petitioner of the beneficiary's job responsibilities. The director concluded 
that the beneficiary did not occupy a senior level position within the foreign company's organizational 
hierarchy or supervise a managerial, supervisory or professional employee as required by the statutory 
Page 5 
definition of "managerial capacity." The director stated that the petitioner had not established "that the 
beneficiary's primary assignment has been . . . directing the management of the organization nor that the 
beneficiary has been . . . primarily directing or supervising a subordinate staff of professional, managerial or 
supervisory personnel, who relieve him from performing non[-]qualifying duties." Accordingly, the director 
denied the petition. ' 
Counsel for the petitioner filed an appeal on October 30, 2006 claiming that the beneficiary was employed in 
a senior-level position in the foreign organization during which he managed the essential function of new 
product development activities for the specialty products business department. 
In a November 21, 2006 appellate brief, counsel contends that the beneficiary was employed in a primarily 
managerial capacity as the foreign entity's zone development manager. Counsel addresses the beneficiary's 
role in managing a "major function" of the foreign organization, the product and business development 
function, explaining that the beneficiary "was responsible for managing the research and development budget 
for all of [the foreign entity's] pesticide development projects for Australia, New Zealand, India, Indonesia, 
Philippines, China and Singapore," as well as establishing the budgets, sales and profitability goals, and 
registration timelines for new products. Counsel states that the beneficiary's responsibilities included 
traveling throughout Australasia "negotiating 'and concluding laboratory and related service contracts, 
prioritizing resource use and representing [the foreign entity's] interests with government regulators in these 
key countries." 
' Counsel challenges the director's observation that the beneficiary managed only one employee while 
employed in the overseas company. Counsel states that as the manager of the foreign entity's product and 
business development function, the beneficiary managed and directed twelve research- and development 
employees in the foreign entity's affiliates in New Zealand, India, Indonesia, Malaysia, Philippines, China and 
Singapore and six outside c~nsultants. Counsel notes examples of the beneficiary's management of the 
product and business developnient function, such as his organizing and chairing a regional research and 
development meeting, and his role in the World Health Organization's certification of "bifenthrin," an 
insecticide developed by the foreign entity. Counsel emphasizes the beneficiary's management of a 
"multifimctional team" comprised of chemists, toxicologists and regulatory specialists in the foreign entity's 
application to the World Health Organization for permanent specifications for bifenthrin, and submits a copy 
6' 
of the World Health Organization report. Counsel states that during his overseas employment, the beneficiary 
also directly managed a market development officer, who was "largely responsible for implementing the 
research [and] development program as established by the [beneficiary]," and possessed authority to sign and 
terminate "contracts with consultants that provided regulatory, biological testing and legal services." 
As additional evidence of the beneficiary's purported qualifying employment in the foreign entity, counsel 
submits organizational charts for affiliate companies in Japan, China, India, Indonesia, Bangladesh, and 
Philippines, highlighting the individuals in each company.who were managed by the beneficiaG. Counsel 
also submits an affidavit from an "HR business partner," describing the beneficiary's former position as 
including the following "activities": 
I 
1. Supervises and provides technical leadership to a staff of scientists/engineers and is 
responsible for the recruitment, training, and motivation of subordinates. 
2. Applies intensive and diverse knowledge of principles and practices in areas of 
assignmknt and related fields. 
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Page 6 
3. Independently makes decisions on problems and methodology issues and secures 
necessary resources. 
4. 
 May represent the organization in forums and conferences within an area of expertise, 
or address an issue currently being discussed within the work group. 
Upon review, the petitioner has not demonstrated that the beneficiary was employed by the foreign 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. 5 204.5(j)(5). 
The petitioner has not documented through a comprehensive description of the beneficiary's job duties that 
the beneficiary primarily managed the foreign company's essential product and business development 
function. The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8 
C.F.R. 9 204.5(j)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manaies the function rather thanper$orms the duties related to the function. 
Initially, the petitioner stated that the beneficiary managed the development and implementation of research 
and development programs for the foreign company's specialty products business in Asia and the Pacific 
region. The petitioner, however, did not explain with specificity the "research and development programs" or 
address who was responsible for devising the specific programs. The petitioner's subsequent statement in 
response to the director's request for evidence explained only that the beneficiary devoted a cumulative 55 
percent of his time to the company's product and business development programs for Asia and New Zealand. 
Although requested, the petitioner's limited and vague September 7, 2006 response failed to describe the 
function managed by the beneficiary while employed in the foreign entity or the job duties performed by the 
beneficiary with respect to this essential function. The petitioner's unsupported claims that the beneficiary . 
coordinated the business and product development and regulatory programs for a specific region serviced by 
the foreign entity are simply not sufficient to meet the regulatory standard of "clearly describ[ing] the duties 
to be performed by the [beneficiary]." Id. 
 The actual duties themselves 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 4 1 (2d. 
Cir. 1990). 
Similarly, the job description offered on appeal falls short of corroborating the claim that the beneficiary 
primarily managed the essential product and business development function. The petitioner offered only 
general claims with respect to its product and business development function and the beneficiary's related job 
responsibilities, and did not identify the specific tasks involved in developing the company's business or 
products. 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? 
Again, the actual duties themselves will reveal the true nature of the employment. Id. at 1108. 
Page 7 
The record, as presently constituted, fails to explain the beneficiary's purported employment as a function 
manager. The job descriptions, taken as a whole, are not sufficient to specifically explain the beneficiary's 
role in managing the foreign company's product development function. The petitioner makes blanket claims 
that the beneficiary "exercised authority over the day-to-day operations of pesticide research and 
- development" and "managed and directed [the] research and development staff' in the foreign company and 
seven affiliates, yet neglected to identify the daily operations of the research and development departments. 
The petition& also failed to explain the daily managerial tasks performed by the beneficiary in his purported 
management of the twelve employees, as well as outside consultants, or document how the research and 
development of the foreign entity's products was performed by someone other than the beneficiary. The 
organizational charts of the foreign entity's affiliates, on which the petitioner highlighted the names of 
employees purportedly managed by the beneficiary, are not probative of the beneficiary's claimed managerial 
authority over the product development function. The petitioner merely mentions eleven employees in five 
related organizations and asserts that they were managed by the beneficiary, yet no discussion was offered as 
to the beneficiary's purported relationship with the affiliates' personnel, or the employees' role in the foreign 
company's product development, or the specific tasks performed by each with respect to developing the 
products. 
Additionally, other than broadly mentioning two meetings and a research program coordinated by the 
beneficiary, the petitioner did not account for how the beneficiary purportedly managed the research and 
development of pesticide projects for eight countries, including Australia. The AAO notes that the World 
Health Organization Report, offered by the petitioner as evidence of the beneficiary's involvement in the 
company's application for certification of bifenthrin, does not identify the beneficiary as a participant or 
contributor to the report. The petitioner merely asserts that the beneficiary "managed the development and 
implementation of the [research and development] programs for the [specialty products business] department 
in the AsialPacific region," without specifically accounting for the performance of the related research and 
development. Absent an explanation of the employees' roles and specific responsibilities with respect to the 
research and development of the foreign entity's products, the beneficiary's purported employment as a 
function manager remains undocumented. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoflci, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Also, the petitioner has not accounted for the beneficiary's purported management over the company's 
business development function. The beneficiary is represented as managing and directing the company's 
business development in the Asian-Pacific region. Yet, based on counsel's claims that the beneficiary 
negotiated laboratory and service contracts and represented the company to government regulators in "key 
countries," it appears that the beneficiary was responsible for promoting, or "developing," the foreign 
company's business. Other than highlighting two market development employees and a business development 
manager on the organizational charts that reflected staffing in the Indonesian, Indian, Bangladesh and Filipino 
companies, there is no evidence that the responsibility of developing the foreign company's business with 
respect to its pesticides was performed by someone other than the beneficiary. The AAO emphasizes that the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary managed the 
function rather than performed the duties related to the function. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be employed in a managerial 
or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing 
Matter ofchurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988)). 
-1 
Page 8 
The job responsibilities assigned to the beneficiary's subordinate, a market development officer, support the 
observation that the beneficiary was not relieved from personally performing the business development 
function. According to the petitioner, the market development officer was responsible for implementing 
product development and registration plans, and providing technical support to customers, distributors and the 
sales teams. The AAO notes that none of the market development officer's responsibilities address a role in 
developing the company's business. 
 Also, although mentioned in the market development officer's job 
description, the petitioner has not specifically identified a "sales team" of the foreign company. 
Moreover, as noted by the director, the petitioner has not established that the beneficiary was supervising or 
controlling the work of managerial, supervisory or professional employees. 5 101(a)(44)(A)(ii) of the Act. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involved 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See id. Based on the petitioner's representations, the beneficiary's direct 
subordinate in the foreign entity was not managing or supervising lower-level employees. Also, the limited 
description of the position of market development officer precludes a finding that the beneficiary's sole 
subordinate was employed as a professional. See Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of 
Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966) (stating that the term 
"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given field 
gained by a prolonged course of specialized instruction and study of at least baccalaureate level, which is a 
realistic prerequisite to entry into the particular field of endeavor). 
Furthermore, as discussed above, the petitioner has not .offered evidence to support its claims that the 
beneficiary supervised or controlled the managerial employees noted on the organizational charts of the 
foreign entity's affiliates. The AAO recognizes the affidavit of Noreen Klitus from Innova Solutions, which 
was submitted to corroborate the beneficiary's former employment in a managerial capacity. In the affidavit, 
Ms. Klitus, whose exact relationship with the foreign or United States entities is not clarified, identified the 
beneficiary as managing the foreign company's affiliates' research and development staff, which, based on the 
"Hay Group" job description1, were comprised of scientists and/or engineers. Again, the limited record 
precludes a finding that the beneficiary exercised managerial authority over personnel in affiliated companies. 
Moreover, the petitioner has not offered evidence explaining the positions held by the employees in the 
affiliated companies or establishing their claimed employment as scientists or engineers. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I&N Dec. at 165. Accordingly, there is insufficient evidence to 
demonstrate that the beneficiary's former employment satisfied each of the\statutory criteria of "managerial 
capacity." 
Based on the above discussion, the petitioner has not demonstrated that the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
In his October 20, 2006 decision, the director observed that the beneficiary would not be performing job 
duties that are primarily managerial or executive in nature during his employment in the United States entity. 
I 
 On appeal, counsel describes the Hay Group as "a global management consultancy that serves as a definitive 
source for compensation information related to the chemical industry both in the United States and throughout 
the world." In her affidavit, )' 
""' 
stated that the petitioner's "system of evaluation and classification 
ofjobs is consistent with the Hay Chemical Industry survey." 
Page 9 
The director's decision, however, does not specifically address the beneficiary's proposed position in the 
United States organization. When denying a petition, a director has an affirmative duty to explain the specific 
, 
 reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of 
proof pursuant to section 291 of the Act, 8 U.S.C. 5 1361. See 8 C.F.R. 5 103.3(a)(l)(i). 
 \ 
On appeal, counsel contends that the beneficiary would be employed by the petitioner in a primarily 
managerial or executive capacity. 
The record does not establish that the beneficiary's employment in the United States organization would be 
primarily managerial or executive in nature. 
The petitioner noted on the Form 1-140 and in its March 23, 2006 letter that the beneficiary would occupy the 
position of global development' manager in the United States company, and provided the following 
description of his proposed position: 
[The beneficiary's] duties here are the management and coordination of research of new 
product development activities for the Specialty Products Business. He provides guidance 
to all entomological programs with the SPB global program, including preservation, 
professional and consumer activities. He manages commercial development activities of 
insecticides in the termite, GHP, T&O and consumer market segments. He coordinates 
research and development activities and planning necessary to develop new products and 
expand the company's labels. He evaluates new active ingredients for the Solutions 
Provide Strategy Group. He prepares, tracks and manages the development of budget and 
performance forecasting for the SPB department. Furthermore, he establishes and manages 
field research and development trials and integrates the product stewardship and 
responsible care codes of APG into new products and expanded labels. 
[The beneficiary] has operated on a senior level with respect to the company's essential 
function of managing and coordinating research of new product development activities for 
the SPB department and he has exercised discretion over the day-to-day operations of that 
function. He regularly attends management meetings of the company and exercises a wide 
degree of discretionary decision[-]making and receives only general supervision from 
higher level executives. 
In a September 8,2006 statement submitted in response to the director's request for additional evidence of the 
beneficiary's proposed employment capacity, the petitioner noted the beneficiary's proposed position as 
director - product acquisitions & licensing, and identified his related job duties as: 
Strategic planning 
Identify product leads for potential acquisition or in house licensing and maintain 
prioritized list 
Direct and lead support team allocated to prioritized opportunity. 
Negotiate terms and finalize contracts for product acquisition and licensing (Regional 
or Global opportunities) 
Identify, develop and maintain relationships with key contacts in third party 
organizations. 

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Page 11 
new duties to the job description. A petitioner may not make ma'terial changes to a petition in an effort to 
make a deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm. 1998). 
The original job description offered for the beneficiary's employment is not sufficient to determine whether 
the beneficiary would be employed in a primarily managerial or'executive capacity. The petitioner made 
general statements of the beneficiary purported management of research programs for the company's specialty 
products business without specifically explaining the function or its day-to-day operations. Case law dictates 
that a petitioner's blanket claim of employing the beneficiary as a manager or executive without a description 
of how, when, where and with whom the beneficiary's job duties occurred is insufficient for establishing 
employment in a primarily managerial or executive capacity. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. For this additional reason, the petition will be denied. 
The AAO recognizes that Citizenship and Immigration Services (CIS) previously approved two L-1A 
nonimmigrant visa petitions filed by the petitioner for the benefit 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 $5 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 5 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 $5 204 and 214 ofthe Act, 8 U.S.C. $5 1154 and 1184; see also $ 316 of the Act, 8 U.S.C. 5 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 prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Sava, 
724 F. Supp. at 1 103. 
\ 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593,597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084; 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 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 approvals by denying the present immigrant petition. 
Page 12 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.