dismissed EB-1C Case: Communications

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
'OLC 
Office: NEBRASKA SERVICE CENTER Date: NO V 0 3 2009 
LIN 07 162 50839 
IN RE: 
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. $ 11 53(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
$Perry   hew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
summarily dismissed. 
The petitioner is a corporation organized under the laws of the State of Florida that claims to operate a 
communications business. It seeks to employ the beneficiary as its executive 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 on September 29, 2008, determining that the petitioner had not 
established that the beneficiary would be employed in a managerial or executive capacity by the 
United States entity. 
In denying the petition, the director noted that the petitioner has provided different job titles for the 
beneficiary at different times, thus U.S. Citizenship and Immigration Services (USCIS) is unable to 
determine the beneficiary's actual job title. In addition, the director noted a number of other 
inconsistencies in the record, including the job title of another key employee in the company's chain 
of command and the actual number of employees on staff. The director also found that the petitioner 
had submitted a vague and non-specific job description which fails to sufficiently describe the 
beneficiary's duties and responsibilities. Further, the director found that although the petitioner 
claimed that the beneficiary will manage subordinate employees, the record lacks information 
regarding the duties of the other employees, without which it cannot be concluded that the 
beneficiary has been or will be relieved of the need to perform non-qualifying duties. The director 
also found that the evidence does not establish that the U.S. entity has the organizational complexity 
to warrant the services of the beneficiary in an executivelmanager position. 
On the appeal brief filed on December 3,2008, counsel for the petitioner contends that the director's 
"determination that the proposed job duties [of the beneficiary] do not meet the definition of 
'managerial capacity' is arbitrary and capricious and constitute reversible error." Counsel notes that 
USCIS has previously granted several L-1 petitions on behalf of the beneficiary and asserts the 
beneficiary's U.S. position continues to meet all four regulatory criteria for managerial status, for 
purposes of the present petition. Counsel claims that the director's decision "relies on minor 
inconsistencies and oversights in the documentation and preparation of the petition by prior 
counsel." Counsel acknowledges that "the petition could have been prepared with greater attention 
to detail," but contends that "these minor mistakes" do not justify the denial of the claim. However, 
counsel offers no explanation or clarification for the inconsistencies and deficiencies in the record 
that the director identified in his decision. Counsel claims that the petitioner has met its burden of 
proving eligibility for the requested benefit by a preponderance of the evidence. Counsel submitted 
no additional evidence on appeal. 
The AAO concurs with the director's conclusion that the record does not demonstrate that the 
beneficiary will be employed in a primarily managerial or executive capacity in the United States. 
As the director noted in his decision, there are a number of material inconsistencies in the record that 
have not been addressed by the petitioner. The petitioner identified the beneficiary's title as 
"executive manager" in the Form 1-140, Immigrant Petition for Alien Worker, as "agency manager" 
in its letter dated May 9, 2007, as "manager" in the offer of employment dated May 2, 2007, and as 
"creative and art director" in another job description submitted with the initial petition and in an 
organizational chart submitted in response to a request for further evidence (RFE) by the director. 
Nowhere in the record does the petitioner clarify which is the correct title for the beneficiary's 
proffered position in the United States. In addition, along with the Form 1-140, the petitioner 
submitted two different descriptions for the beneficiary's position in the United States, the May 9, 
2007 letter and May 2, 2007 offer of employment lists one set of duties attached to the position of 
"agency manager" or "manager," while another document purporting to describe the U.S. team listed 
an entirely different set of duties for the beneficiary in the role of creative and art director. Again, 
the petitioner has made no attempt to explain or reconcile these two different sets of duties that have 
been attributed to the beneficiary's position in the U.S. company. 
Further, as the director noted, another key employee in the company, 
 was listed in a 
document submitted with the initial petition as a photography & production director, reporting to the 
beneficiary as creative director, and later appeared on the organizational chart for the U.S. company 
as the chief operating officer, to whom the beneficiary reported. In addition, the petitioner's claims 
regarding the number of employees working for the U.S. company also fluctuated from 8 on the 
Form 1-140, to 4 (one full-time and three part-time) in the letter dated May 9, 2007 and the 
description of the U.S. team submitted with the Form-140, to 9 on the organizational chart submitted 
in response to the RFE. Again, no explanation has been provided with regard to these 
inconsistencies. 
Contrary to counsel's claim on appeal, the inconsistencies in the record discussed above are not 
"minor mistakes." To the extent they relate to the title and duties of the beneficiary's position in the 
U.S. company, and to the organizational structure of the U.S. company itself, they are directly 
relevant to the determination of whether the beneficiary will function primarily in a managerial or 
executive capacity in the United States. As such, the director's denial of the petition based on these 
unaddressed deficiencies in the record does not constitute error. Further, other than acknowledging 
their existence in the record and dismissing them as "minor," counsel has failed to provide any 
explanation or additional evidence to reconcile or clarify these inconsistencies. 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 AAO recognizes that USCIS previously approved an L-1A nonirnrnigrant visa petition filed by 
the petitioner on behalf of the beneficiary, and notes that this issue was thoroughly addressed in the 
director's decision. As noted by the director, in general, given the permanent nature of the benefit 
sought, immigrant petitions are given far greater scrutiny by USCIS 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 8s 101(a)(44)(A) and (B) of the Act, 8 
U.S.C. 8 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: $8 204 and 214 of the Act, 8 U.S.C. 55 1154 and 1184; see also 5 316 
of the Act, 8 U.S.C. 8 1427. Because USCIS spends less time reviewing L-1 petitions than Form I- 
140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof; each petition must stand on its own individual merits. See 8 C.F.R. 5 
103.8(d); 8 C.F.R. 5 103.2(b)(16)(ii). The prior nonimmigrant approvals do not preclude USCIS 
from denying an extension petition. See e.g. Texas A&A4 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. USCIS denies 
many 1-140 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 at 22; 
Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 
and contradictory assertions that are contained in the current record, the approvals 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 material inconsistencies in the present record, the 
AAO finds that the director was justified in departing from the previous nonimmigrant approval by 
denying the present immigrant petition. Further, the director provided ample explanation for his 
departure from the previous nonimmigrant approvals. 
The regulation at 8 C.F.R. 5 103.3(a)(l)(v) states, in pertinent part: "An officer to whom an appeal is 
taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any 
erroneous conclusion of law or statement of fact for the appeal." 
As the petitioner has failed to address on appeal the material inconsistencies in the record discussed 
above, or any of the other reasons for denial that the director has cited in his decision, the petitioner