dismissed EB-1C Case: Compressor Technology

iddtifying damde\e4lldto
preventclearlyunwarranted
invasionofpGrsooalprivacy
tuBLtCCOPY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
LIN 0525651189
Office: NEBRASKA SERVICE CENTER Date: a 'lllftlcx:T 1·" LUU
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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.
[LRotf~
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based visa petition.· The
director granted the petitioner's subsequent motion to reconsider, but ultimately affirmed his previous decision
and denied the 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(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § I I 53(b)(1)(C).
The petitioner is a corporation organized under the laws of the State of Illinois that is engaged in the
technological development of air compressors, and claims to be the subsidiary of the beneficiary's foreign
employer. The petitioner seeks to employ the beneficiary as its general manager.
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary had
been employed by the foreign entity in a primarily managerial or executive capacity, or that the beneficiary
would be employed by the United States company in a qualifying managerial or executive capacity.
On appeal, counsel for the petitioner challenges the director's findings, claiming that they "are contrary to the
factual record" and contain erroneous conclusions of law. Counsel claims that the petitioner has established
that the beneficiary's former employment in the Chinese company and proposed employment in the United
States entity satisfy the statutory requirements of a manager or executive. Counsel submits a lengthy brief in
support of the appeal.
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 been employed for at least I
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.
I In a decision dated March 30, 2006, the director initially denied the petition due to abandonment. The
petitioner subsequently filed a motion to reconsider, presenting evidence that the petitioner had submitted a
timely response to the director's request for evidence. Citizenship and Immigration Services ultimately
reopened the matter based on its own motion. See 8 C.F.R. § 103.5(a)(5).
Page 3
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.
The first issue in this proceeding is whether the beneficiary was employed by the foreign entity in a primarily
managerial or executive capacity.
Section 10I(a)(44)(A) of the Act, 8 U.S.c. § I 10I(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. § I 10I(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization in which the employee
primarily-
(i) Directs the management of the organization or a major component or function of the
organization;
(ii) Establishes the goals and policies of the organization, component, or function;
(iii) Exercises wide latitude in discretionary decision-making; and
(iv) Receives only general supervision or direction from higher level executives, the board of
directors, or stockholders of the organization.
Page 4
The petitioner filed the immigrant visa petition on September 2,2005. In an appended August 29, 2005 letter,
the petitioner identified the beneficiary as the general manager of the foreign entity, during which he was
responsible for both the "implementation of the Company's product development and continuous profitability
improvement programs in China" and "the development and profitability of product applications in China."
The petitioner noted that the beneficiary also "conducted daily operations." The petitioner described the
beneficiary's specific job duties as including:
• Responsibility for new market implementation of scroll technology product
applications in China including researching conventional compressor replacement
options. Analyzing compressor industry and end-user market places. Developing
plans and coordinating presentations to compressor distributors and potential end-users
and meet with potential customers;
• Responsibility for the development and profitability of the products including review
and manage product design schedules. Oversee production of prototypes and
production samples. Establish performance specifications and oversee testing.
Oversee production schedules;
• Conduct daily operations including review weekly and monthly reports from design,
production and marketing departments, review and approve financial reports and
budgets.
The petitioner submitted copies of the beneficiary's payroll summaries, confirming his employment in the
foreign entity from February 28, 2002 through November 2003. The petitioner claimed that the beneficiary
was employed by the foreign entity until his transfer to the United States as a nonimmigrant in August 2004.
On December 7,2005, the director issued a request for evidence noting that the information contained in the
petitIoner's initial filing was not sufficient to establish the beneficiary's prior overseas employment in a
primarily managerial or executive capacity. The director explained that the descriptions provided for the
beneficiary's employment as the foreign entity's general manager were broad and undefined, and "did not
sufficiently detail the actual duties of the position[]." The director requested a "detailed, comprehensive
description" of the job duties performed by the beneficiary in the foreign entity and the amount of time the
beneficiary devoted to performing each task. The director also requested that the petitioner describe the
foreign entity's "overall structure" at the time of the beneficiary's employment, identify the beneficiary's
former position in the organizational structure, and describe the employees supervised by the beneficiary and
their job duties.
Counsel for the petitioner responded in a letter dated February 28, 2006. In an attached letter, dated February
6, 2006, the foreign entity provided the following "essential functions" related to the beneficiary's
employment as the foreign company's general manager:
• Developing new markets for implementation of scroll technology product applications
in China, including researching the conventional compressor industry and end-user
markets. Developing plans for and coordinating presentations to compressor
distributors and potential end-users. Meet with potential customers regarding scroll
technology applications. . .. 40%
• Developing products and ensuring profitability of the products by review and
management of product design schedules; oversee production of prototypes and
Page 5
production samples; establish performance specifications and oversee testing of
products; oversee production schedules. 40%
• Resolve operational, manufacturing, and maintenance problems to ensure minimum
costs and to prevent operational delays[.] 12%
• Evaluate and determine responsibilities of assigned organizational and staff positions to
better accomplish business objectives[.] 8%
The foreign entity noted that the beneficiary managed and directed the activities of employees holding the
following positions: assistant to the general manager; financial manager; operations manager; human
resources manager; two external consultants; and, a technical manager, which was identified as being
unoccupied. An appended organizational chart briefly outlined the tasks related to each subordinate position.
In a decision dated April 13, 2006, the director concluded that the petitioner had not demonstrated that the
beneficiary had been employed by the foreign entity in a primarily managerial or executive capacity. The
director outlined the job duties related to the position of general manager, stating that they were "overly broad
in nature and did not adequately define the beneficiary's specific duties." With respect to the beneficiary's
subordinate staff, the director noted that while the employees possess managerial titles, "it does not appear
that any subordinates are actually overseeing departments, but are rather the only employees in such
departments." The director concluded that the beneficiary's supervision of the subordinate workers accounted
for only a "small proportion of [his] time, and the majority of his time [was] spent performing functional
duties." Specifically, the director noted that because the beneficiary had researched markets, performed
presentations, and met with clients, he appeared to have been performing the company's sales and marketing
functions. The director also noted that while the beneficiary was claimed to have been overseeing design
schedules and prototype productions, "the record shows no employees performing design and production
work." Consequently, the director denied the petition.
On May 16, 2006, counsel for the petitioner filed a motion to reopen and reconsider the director's decision,
which the director granted. In addition to a brief in support of the motion, counsel submitted a May 12,2006
letter from the foreign entity, in which the foreign company's finance manager explained the history of the
foreign company as a trading company that "reinvented itself' as a holding and business investment
development company, resulting in the purchase of the petitioning entity in 2001. The finance manager
explained the foreign entity's decision ,to hire the beneficiary as its general manager, stating that it realized its
need for someone to "lead this new business," and noting that the beneficiary had prior work experience with
compressor manufacturers. The finance manager explained:
Between 2002 and 2004, [the beneficiary] directed this new investment and made many
recommendations to [the foreign entity's] Board of Directors for the adoption and
implementation of new business plans to increase the possibilities for the success of [the
foreign entity's] investment in [the petitioning entity]. [The beneficiary] also directed [the
foreign entity's] effort to develop manufacturing facilities in China for scroll compressor
products based on [the petitioner's] patented variable thickness technology and to establish
collaborative agreements with compressor manufacturers in China interested in the new
technology. While serving as [the foreign entity's] General Manager, [the beneficiary] also
directed [the foreign company's] other business and investment development options and
recommended to [the foreign entity's] principals various investment options, a number of
Page 6
which resulted in a substantial investments [sic] which are or were held in a variety of ways
by the investors.
Counsel also submitted a May 11, 2006 affidavit from the president of the petitioning entity, in which he
explained the foreign company's initial desire to hire the beneficiary based on "his extensive executive
experience and familiarity with the scroll compression business .... " The petitioner's president provided the
following description of the beneficiary's former overseas employment as general manager:
[The beneficiary] conducted a thorough evaluation of [the petitioner's] operations,
recommended numerous changes to maximize the success of the investment, and
implemented a number of these changes following approval by [the foreign entity's] Board
of Directors. [The foreign entity] was particularly concerned with the difficulties [the
petitioner] and its wholly owned subsidiary, Scrollex, were having developing marketable
products based on [the petitioner's] patented variable thickness scroll compression
technology and limited revenue streams. [The beneficiary] identified numerous concerns
regarding [the petitioner's] operations and urged the Board of Directors to make many
changes to ensure the long range success of the [United States] investment.
In her brief on motion, counsel contended that the previously submitted evidence along with the two
affidavits, as well as information on the petitioner's website addressing its history and operations, substantiate
the petitioner's claim that the beneficiary was employed by the foreign entity in a primarily executive
capacity. Counsel claimed that the beneficiary qualified as an executive because:
[H]e directed [the foreign company's] operations, specifically its investment in [the
petitioning entity] and its pursuit of other investments on behalf of its principals; (b) he
established the goals and policies of [the foreign entity], specifically by evaluating [the
foreign entity's] investment into [the petitioner], by recommending numerous changes in
[the petitioner's] operations to [the foreign entity's] Board of Directors, by developing a
business plan for [the petitioner] in accordance with the recommendations approved by [the
foreign entity's] Board of Directors, and by directing the implementation of. the business
plan; (c) [he] exercised broad discretion in developing and directing the implementation of
the business plan; and (d) [he] reported to no one other than [the foreign entity's] Board of
Directors. A review of [the beneficiary's] responsibilities at [the foreign entity]
demonstrate that he was has [sic] also employed in a managerial capacity as [the term]
["managerial capacity"] is defined at 8 C.F.R. § 204.5(j)(2)(C).
In an August 11, 2006 decision, the director concluded that the petitioner had not established the beneficiary's
overseas employment with the foreign entity in a primarily managerial or executive capacity. The director
stated that the evidence submitted on motion "appears to emphasize the beneficiary's involvement in the
establishment of business operations with the United States entity while he was employed abroad," whereas
the beneficiary's initial job description discussed the beneficiary's responsibility towards "new market
implementation of scroll technology product applications in China," without addressing the beneficiary's work
with the United States company. The director found this to be "a major change in the beneficiary's alleged
[job] duties abroad," and concluded that the petitioner had not submitted evidence to resolve the
inconsistencies in the two job descriptions. Consequently, the director affirmed his original decision, and
denied the petition.
Page 7
Counsel for the petitioner filed an appeal on September 13, 2006, claiming that the director had made
erroneous findings of fact and conclusions of law in denying the immigrant visa petition. In a lengthy
appellate brief, submitted on April 16, 2007, counsel challenges the director's finding of inconsistencies in the
descriptions of the beneficiary's foreign employment, claiming that the job description submitted on motion
"complemented the prior evidence of record and was corroborated by substantial objective evidence." As
evidence of the beneficiary's former overseas employment as a manager or executive, counsel references
portions of the affidavits from the petitioner's president and foreign entity's finance manager, most of which
have already been cited above, as well as information contained on the petitioner's website, which counsel
states documents "how the patented scroll technology [the foreign entityJ acquired when it purchased a
majority interest in [the petitioning entityJ was being used in both China and the United States to research,
develop, manufacture and market innovative scroll compressor products." Counsel suggests that this
evidence is significant, in that it demonstrates the foreign entity's need to employ a general manager "with
[the beneficiary's] management and executive experience in the scroll compressor business in China to direct
and manage the development of the cutting edge variable thickness scroll compressor technology it acquired
when it purchased [the petitioner)." Counsel also references information contained on the website of
Scrollex, a wholly owned United States subsidiary of the petitioning entity, in which the company documents
its development of a manufacturing facility and research and development center in China and deployment of
a national sales operation to China. Counsel states that this information is consistent with the statements of
the foreign entity's finance manager, who, counsel states, explained the beneficiary's responsibilities of
directing the development of manufacturing facilities in China for scroll compressor products, establishing
agreements with Chinese manufacturers, and making investment recommendations to the foreign entity's
board of directors.
Counsel challenges the director's finding that the initial description offered of the beneficiary's employment
with the foreign entity is not consistent with the job description subsequently submitted with the petitioner's
motion to reopen and reconsider. Counsel contends that contrary to the director's finding, the August 29,
2005 letters from the petitioner and its president discussed the beneficiary's "duties with [respect toJ
operations in both China and the United States." Counsel further highlights portions of the letters that address
the existence of the petitioning entity and the beneficiary's role in the foreign company's international
activities, which counsel notes would require "substantial involvement with the United States operations."
Counsel states that the subsequent letters from the petitioner's president and the foreign entity's fmance
manager did not "suggest[ ] that the focus of [the beneficiary's] evaluations and recommendations did not
include [the foreign entity's] operations in China as well as in the United States." Counsel states: "[T]here
was no wall between the United States and Chinese operations since [the petitioner's] patented technology,
product development, and international sales focus clearly required an international focus." Counsel further
states:
[I]t should also be noted that the discussion in [the president's] affidavit and [the finance
manager's] letter of [the beneficiary's] responsibilities while serving as [the foreign entity's]
General Manager for evaluating [the petitioner's] operations and recommending and
implementing changes was included in large part to demonstrate the [the foreign entity]
was transferring him to the position of [the petitioner's] General Manager to perform
executive and management functions which could best be performed by him while
employed in the United States. The fact the [the beneficiaryJ was transferred to the United
States to address 'the difficulties [the petitionerJ and its wholly owned subsidiary, Scrollex,
were having developing marketable products based on [the petitioner's] patented variable
Page 8
thickness scroll compressor technology and limited revenue streams' does riot in any way
contradict his responsibilities while serving as [the foreign entity's] General Director in
China for managing product development and production or other components of the
operations in China.
Counsel contends that as the "highest level employee" in the foreign organization, during which the
beneficiary directed and established the goals of the company, exercised wide latitude in discretionary
decision-making, supervised managerial, professional, and supervisory employees, and reported only to the
company's board of directors, the beneficiary should be considered to have been employed by the foreign
company in a primarily managerial or executive capacity.
Upon review, the petitioner has not established that the beneficiary was employed by the foreign entity in a
primarily managerial or executive capacity.
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table),
1991 WL 144470 (9th Cir. July 30, 1991). 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.
§ 204.50)(5).
The job descriptions offered with the petitioner's original filing and in response to the director's request for
evidence suggest that the beneficiary's employment as general manager of the foreign entity included the
performance of sales, marketing, and business and product development functions for the company beyond
those normally considered to be managerial or executive in nature. See §§ 101(a)(44)(A) and (B) of the Act.
In both the August 29, 2005 and February 6, 2006 letters from the petitioner and the foreign entity, the
beneficiary was represented as holding responsibility for introducing the petitioner's scroll technology product
applications into new markets in China, researching and developing the appropriate consumer markets,
meeting with and making sales presentations to distributors and en.d-users, developing products, and
establishing product performance specifications. Based on the foreign entity's February 6, 2006 letter, the
beneficiary devoted approximately 80 percent of his time to performing these tasks, which appear to be non­
managerial and non-executive in nature. Moreover, while he was represented as having managed four
managerial employees and two outside consultants, the job description indicates that the beneficiary spent
only 8 percent of his time evaluating the responsibilities held by his subordinates. Based on these
representations alone, which the AAO notes were made by the petitioner prior to the director's finding that the
beneficiary had been primarily performing "functional duties," it appears that the beneficiary was personally
engaged in the performance of non-managerial and non-executive duties related to the foreign entity's sales,
marketing, and business and product development functions. An employee who "primarily" performs the
tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology
Int'l., 19 I&N Dec. 593, 604 (Comm. 1988).
The foreign entity's staffing levels also suggest that the beneficiary was responsible for personally performing
the non-qualifying, operational tasks associated with the development of the foreign entity's products and
Page 9
markets in China. Although brief, the job descriptions for the beneficiary's subordinate employees included
such tasks as: business strategy analysis; public relationship; investment analysis; business development;
marketing; sales; office management; corporate relations; finances; and, human resources. While the foreign
company's operation director was identified as being engaged in sales, marketing, and business development,
the petitioner has not represented that he relieved the beneficiary from the perfonnance of the specific above­
named responsibilities. Furthermore, because the petitioner specifically represented the beneficiary as having
"[d]evelop[ed] new markets," "research[ed] the conventional compressor industry and end-user markets,"
"coordinat[ed] presentations to compressor distributors and potential end-users," "[met] with potential
customers," "develop[ed] products," and "establish[ed] performance specifications," and did not provide
contradictory claims or evidence that someone other than the beneficiary was responsible for performing
these non-managerial or non-executive tasks, the finding that the beneficiary's overseas employment was in a
primarily non-managerial or non-executive capacity is reasonable.
Similarly, the claims made by the finance manager in his letter dated May 12, 2006 further support finding
that the beneficiary was not employed by the foreign company as a manager or executive. Specifically, the
finance manager identified the beneficiary's responsibility of directing the development of manufacturing
facilities in China. Yet, the petitioner did not account for the development of manufacturing facilities by any
of the beneficiary's subordinates. Despite assigning the responsibility of "manufacturing facility analysis" to
the position of technical manager, the beneficiary could not have "directed" the development of Chinese
manufacturing facilities, because this position in the foreign entity remains unoccupied. If CIS fails to believe
that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. §
1154(b); see also Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop. Inc. v.
Nelson, 705 F. Supp. 7,10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
The director concluded in his August 11, 2006 decision that subsequent job descriptions offered by the
petitioner of the beneficiary's fonner overseas employment seemed to change the beneficiary's foreign job
duties, focusing instead on the beneficiary's role in establishing business operations in the United States.
Counsel challenges the director's finding, referencing letters from the petitioner and the foreign entity as
evidence that the claims made in the job descriptions are consistent. The AAO recognizes that the foreign
and petitioning entities are interdependent, in that the foreign entity, a holding and business investment
development company, purchased the petitioning entity as an investment in the United States economy and to
expand operations in China. However, while they may not entirely alter the original depiction of the
beneficiary's position in the overseas company, several of the job descriptions submitted on motion to reopen
and reconsider the director's decision do not appear to coincide with the original representations of the
beneficiary's foreign employment. Whereas the petitioner and foreign entity initially noted the beneficiary's
role in personally developing the foreign entity's sales markets and meeting with potential users and buyers,
latter job descriptions, particularly the president's May 11, 2006 affidavit, focus on the beneficiary's
evaluation of the operations and product development of the petitioning entity and its subsidiary, Scrollex.
Similarly, in her brief on motion, counsel emphasized that by managing and evaluating the petitioning entity,
the beneficiary was managing the foreign company. Emphasis by the petitioner and counsel on the
beneficiary's role in deciding the most successful operations of the petitioning entity is insufficient to
establish the true capacity in which the beneficiary was employed by the foreign entity, particularly since the
latter claims fail to expound on the beneficiary's original job description, which, again, suggests the
beneficiary's employment in a primarily non-managerial or non-executive capacity. It is incumbent upon the
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to
Page 10
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective
evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
The AAO further notes that with respect to the foreign entity's operations as a holding and business
investment development company, the record is deficient in explaining the company's "other business and
investment development options." The beneficiary is identified by the finance manager as having directed
and recommended to the foreign entity business and investment options other than its investment in the
petitioning entity. Counsel also addresses in her brief on motion to reopen or reconsider the beneficiary's role
in recommending to the foreign entity other investments on behalf of its principals. The petitioner has not
clarified the purported "other investments" of the foreign entity or the beneficiary's responsibility in directing
the company's business and investment options. Rather, as discussed previously, the record focuses mainly
on the beneficiary's responsibility of evaluating strategies to enhance the business operations of the
petitioning entity and Scrollex. The actual duties themselves reveal the true nature of the employment. Fedin
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
Based on the foregoing 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.
The second issue in this proceeding is whether the beneficiary would be employed by the United States entity
in a primarily managerial or executive capacity.
On the Form 1-140, the beneficiary was identified as assuming the position of general manager of the United
States entity. In an appended letter, dated August 29, 2005, the petitioner discussed the beneficiary's
employment in the following manner:
In this position, [the beneficiary] has provided strategic and tactical managerial leadership
and direction to improve the profitability and cash flow of [the petitioning entity].
Additionally, he has further defined and developed [the petitioner's] product line and
market share. In addition to overseeing [the petitioner's] day-to-day operations, [the
beneficiary] is responsible for planning and developing organizational policies and goals,
and implementing goals through subordinate administrative personnel. [The beneficiary]
directs and coordinates the promotion of products manufactured to develop new markets, to
increase market share, and to obtain a better competitive position in the industry. [The
beneficiary] is also responsible for analyzing and managing the budget of the company.
[The beneficiary] coordinates transactions among foreign entities and the U.S. entity
including demand forecasting, order processing, inventory and quality control, project
management, cost analysis, and customer service. [The beneficiary] also directs the
preparation of directive to [m]anagers outlining policies, programs, and operational
changes for implementation ....
* * *
In sum, [the beneficiary] has autonomous control over, and exercises wide latitude and
discretionary decision-making in, establishing the most advantageous courses of action for
the successful management and direction of our international development activities.
Page 11
The petitioner also provided a list of job responsibilities to be held by the beneficiary. As the outline is
repeated by the petitioner in subsequent correspondence, and includes an allocation of the amount of time the
beneficiary would dedicate to each task, the job responsibilities will be documented below.
In his December 7, 2005 request for evidence, the director noted that the present record, which utilized
"broad, undefined language," did not detail the specific job duties to be performed by the beneficiary in his
position as general n:tanager. The director asked that the petitioner submit "a detailed, comprehensive
description of the beneficiary's duties" in the United States company, and an allocation of the amount of time
the beneficiary would spend performing each. The director asked that the petitioner also provide a
description of the company's "overall structure," including its staffing levels and the employees to be
supervised by the beneficiary.
Counsel responded in a letter dated February 28, 2006, referencing a chart from the petitioner, which
highlighted the following "managerial duties" to be performed by the beneficiary:
• Developing, implementing and managing business plans, market trends and economic
conditions to forecast potential purchases and sales for North and Latin America.
Make final determinations on new markets and products. Developing relationships
with governmental agencies and business organizations throughout North America and
Latin America. [The beneficiary] will develop relationships by contacting businesses
or governmental agencies via telephone or by traveling in person to describe scroll
technology and explain its benefits, uses and implementation. 25%
• Developing and managing [the petitioner's] business plans to include all program
requirements, labor hours, production costs and cycles, including establishing
production and quality control standards, business budgets and cost control. 12%
• Managing the development of scroll compressors technology strategy and researching
and developing new and emerging products; reviewing and managing design schedules
for compressors; oversee production of prototypes and production samples. 15%
• Leading the development of a manufacturing process plan, including personnel
requirements, material needs, subcontracting requirements, facility needs, and tooling
and equipment needs. 15%
• Coordinating manufacturing activities with all other functions of the organization and
suppliers to obtain optimum production and utilization of human resources, machines,
and equipment. 10%
• Reviewing production and operating reports and directing the resolution of operational,
manufacturing, and maintenance problems to ensure minimum costs and prevent
operational delays. 15%
• Determining responsibilities of assigned organization and staff positions to accomplish
business objectives. 8%
In its February 6, 2006 letter, the petitioner stated that the beneficiary's managerial authority over the
petitioner's daily operations might also extend to those of the petitioner's subsidiary, Scrollex. The petitioner
indicated that the beneficiary would be "responsible for directing the implementation of marketing strategies
for [the petitioner's] scroll technology throughout North and South America," and would provide "senior level
guidance and direction regarding the successful implementation of [the petitioner's] international development
plans and policies."
Page 12
The petitioner noted the employment of four workers: an office president who would oversee the company's
business development, marketing, sales, and management; a corporate manager in charge of project
management, customer relations, new product development, corporate relations, and intellectual property
management; a technical manager who performs the purchasing, quality control management, and prototype
manufacturing functions; and a financial manager in charge of internal control, banking, taxes, and
accounting. The four positions, as well as the unoccupied position of engineer technical manager, were
identified on an appended organizational chart as being subordinate to the beneficiary. The petitioner
provided the resumes of each of the four employees.
The AAO notes that an appended quarterly federal tax return ending September 30, 2005 indicated the
employment of two workers during the month the instant petition was filed. Assuming the beneficiary was
employed by the petitioner on the filing date, is not clear from the record which of the above-named positions
was occupied by the second worker.
In his April 13, 2006 decision, the director concluded that the petitioner had not demonstrated that the
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity.
The director noted that despite his request for specification of the beneficiary's proposed job duties, the job
description submitted in the petitioner's response to his request was essentially the same as that originally
provided at the time of filing. The director stated that the petitioner had failed to explain what managerial or
executive tasks were ~ncluded in "managing" the company's strategic development or "leading" its process
plan. The director further noted that while the beneficiary is represented as supervising managerial
employees, "it is not clear that any of these subordinates are actually managerial level in nature." The director
concluded that the record suggested that the beneficiary "would spend minimal time actually overseeing such
employees," and that the beneficiary "would be actively performing sales and marketing duties, such as
forecasting sales and interacting with client organizations." Consequently, the director denied the petition.
In the May 16, 2006 motion to reopen or reconsider, counsel for the petitioner references a May 11, 2006
affidavit, in which the petitioner's president addressed the petitioner's operations with respect to the foreign
organization and the United States company, Scrollex, as well as the beneficiary's responsibilities in the
petitioning entity. The petitioner stated:
Since [the beneficiary's] assumption of [the position of general manager in the petitioning
entity], [the beneficiary] recommended to the Board of Directors of [the foreign entity] and
[the petitioner] numerous changes in [the petitioner's] operations and has been responsible
for developing a new business plan and directing its implementation. The changes
addressed the need: (a) to increase the speed of development of quality, marketable
products utilizing [the petitioner's] patented technology in order to maximize the
profitability of the patented technology; (b) to develop alternative revenue sources
primarily with the adoption of a product trading strategy; and (c) to keep costs of operations
low through the development of collaborative partnership relationships sharing the costs of
product development projects and through other effective cost control mechanisms.
In an attempt to explain the beneficiary's executive authority, the petitioner highlighted five "principal
business operations" in which the United States company is engaged, and which the beneficiary is purportedly
directing, including: (1) the utilization of variable scroll technology in refrigeration compressors, which
required the beneficiary to present information regarding technology and feasibility studies to "top
Page 13
multinational refrigeration compressor companies"; (2) the beneficiary's negotiation of a sales representation
contract for Scrollex to act as the sales representative of a Chinese company that is engaged in the automotive
air conditioning business; (3) the establishment of the petitioning entity as the North American marketing and
sales representative of a Chinese aluminum wheels manufacturer; (4) the establishment of a joint venture with
a Chinese manufacturer of small air compressors, under which the petitioner would market the compressors in
the United States; and (5) negotiations to license the petitioner's scroll technology to a European company,
establishing the petitioner as the company's marketing and sales representative in the United States.
The petitioner further summarized the beneficiary's "executive" responsibilities as follows:
a. Strategic planning:
[The beneficiary] sets the strategic focus for business structure, product portfolio,
including existing and new technologies and services, targeted markets, key function
responsibility assignment (development, manufacturing and marketing), and overall
human resource policy. An example of [the beneficiary's] role in strategic planning is
[the petitioner's] adoption of a trading strategy in addition to its patented technology
focus. It is this strategy, which was adopted by the Boards of [the petitioning entity]
and [the foreign entity], which led [the petitioner] to diversify its revenue sources
through the new business activities discussed above.
b. Relationship Building:
[The beneficiary] creates, incubates, nurtures and maintains relationships with existing
and potential customers and partners, suppliers, government officials, and industry
leaders. [The beneficiary's] skills in this area were directly responsible for his success
in establishing the joint venture and in negotiating sales and
marketing agreements with high[-]level business executives.
c. Organizing operations:
[The beneficiary] designs and leads the structural approach to each revenue stream. He
determines where each critical function will be done and what type of organization will
perform it. An example is the small air compressor product line which [the
beneficia organized: the technolo coming from [the petitioner], the design coming
from he manufacturing being done by the •••••
int venture, and sales being the responsibility of [the petitioner].
d. Marketing/Sales:
[The beneficiary] sets and approves overall marketing and sales strategies and targets.
He meets with the executive of key customers. Examples include the sales initiatives
he is making with executives of the aftermarket air conditioning companies, the project
he is directing for use by the multinational refrigeration company of [the petitioner's]
patented technology in refrigerators, and the sales agreements [the petitioner] has
obtained to sell automobile air conditioner
compressors.
e. Budgeting:
Page 14
[The beneficiary] approves [the petitioner's] budgets, business plans, major
expenditures, and banking relationships.
f. Delegation:
[The beneficiary] determines functional responsibilities and delegates tasks and
activities to [the petitioner's] staff, outside contractors, and other organizations. [The
beneficiary's] leadership in establishing collaborative arrangements with project
partners and sales and marketing arrangements with distributors and sales agents and
representatives has enabled [the petitioner] to diversify and expand its business
operations and increase revenue flows without incurring greatly increased costs of
operations which would have depleted the funding available for its operations.
g. Performance evaluation:
[The beneficiary] delegates or conducts reviews of staff and the quality of their
contributions to organization targets. Examples of this are his conduct of annual and
quarterly review meetings, review of employee performance evaluations, most of
which [the office president] perform[s], compensation adjustments, and the termination
of the technical manager.
h. Results evaluation:
[The beneficiary] approves the annual budgets, monitors actual achievements against
targets, and implements corrective actions.
In her brief on motion, counsel referenced additional documentation, such as copies of the petitioner's and
Scrollex's websites, patent agreements assigning rights to the petitioning entity, and sales representation
agreements, as evidence that the petitioner requires the employment of an executive to oversee its operations.
Counsel also challenged the director's reference to the petitioner's staffing levels, stating that as a technology
company, the petitioner does not perform all functions related to its sales, marketing, research and
development, design, and manufacturing, but rather "establish[es] collaborative arrangements with other
corporations by which they divide the responsibilities among a group of corporations in order to maximize
expertise and profitability and to take advantage of differentials in the costs of production, including wages
and material." Counsel states that in addition to licensing its technology to other organizations, the petitioner
contracts with outside companies for design, manufacturing, and sales services.
In the August 11, 2006 decision, the director concluded that the petitioner had not established that the
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity.
The director recognized that while the beneficiary may perform managerial or executive job duties in the
petitioning entity, "it is not clear that a majority of his time would be spent performing that level of duties."
The director specifically noted the beneficiary's responsibility of negotiating contracts, stating that he would
be performing routine, functional tasks of the petitioner's business. Consequently, the director affirmed his
previous decision, and denied the immigrant visa petition.
In the brief on appeal, counsel for the petitioner challenges the director's finding that the beneficiary would
not be employed as a manager or executive of the United States company. Counsel references the job duties
outlined in the petitioner's February 6, 2006 letter, the petitioner's organizational chart identifying the
beneficiary in the highest position of the managerial hierarchy, and the May 11, 2006 affidavit subsequently
Page 15
submitted by the petitioner's president on motion. Counsel also highlights the five previously-mentioned
business projects with which the beneficiary has been involved since his transfer to the petitioning entity.
Counsel contends that the record as a whole demonstrates the beneficiary's role as the petitioner's chief
executive, in which he would be performing in a primarily managerial or executive capacity. Counsel states:
The sole example which [Citizenship and Immigration Services (CIS)) offers to support its
contention is a reference to [the beneficiary's) responsibilities for 'negotiating sales
contracts.' [CIS) seems to be suggesting that [the beneficiary) is some sort of glorified
salesman whose responsibility is to enter into simple contracts for the sale of goods and
services. However, the only reference in the record to [the beneficiary's] negotiation of
agreements demonstrates that the contracts [the beneficiary] was negotiating were
technology licensing agreements, joint venture agreements, minority ownership
agreements, and nondisclosure agreements, all of which are the types of agreement which
typically require the attention and direction of high level executives and managers. In fact,
a review of the discussion in' [the petitioner's president's] affidavit reveals that [the
beneficiary) negotiated licensing, sales representations and joint venture agreements with
high level executives of the companies with which [the petitioner] was seeking to establish
complex licensing, sales representation, and joint venture agreements. [CIS'] suggestion
that [the beneficiary] would be acting as some type of simple salesperson to justify its
contention that [the beneficiary] would not be acting primarily as a manager or executive
has no basis in the record, and therefore, must be rejected.
Counsel again notes the petitioner's staffing levels as common in the "increasing globalized economy,
particularly in the areas of new technology." Counsel references various business articles as describing
"collaborative arrangements" between organizations, and contends that the petitioner's organizational
hierarchy does not detract from the executive or managerial nature of the beneficiary's employment capacity.
Upon review, the petitioner has not established that the beneficiary would be employed by the United States
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. § 204.5(j)(5).
The AAO recognizes the extensive documentary evidence submitted by the petitioner of the beneficiary's
employment in the United States entity. While the offered job descriptions, particularly those included in the
president's affidavit, suggest that the beneficiary would be performing primarily managerial or executive job
duties, a review of the record as a whole does not corroborate the petitioner's claim of employing the
beneficiary as a manager or executive. For example, as explained in further detail below, the record contains
unsupported claims and inconsistencies in the beneficiary's employment in the petitioning entity, focusing
instead at times on the tasks the beneficiary performs for Scrollex. Additionally, there are discrepancies in
the petitioner's represented staffing levels and the employees' related job duties. These inconsistencies are
critical to the analysis of the instant issue, as they create doubt as to the beneficiary's true employment
capacity. A few errors or minor discrepancies are not reason to question the credibility of an alien or an
employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. Us., 345 F.3d 683, 694 (9th
Cir., 2003). However, anytime a petition includes numerous errors and discrepancies, and the petitioner fails
to resolve those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will
Page 16
raise serious concerns about the veracity of the petitioner's assertions. Id. Doubt cast on any aspect of the
petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support
of the visa petition. Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988).
The AAO first addresses the parent-subsidiary relationship and operations between the petitioning entity and
Scrollex. The petitioning entity was identified in the petitioner's February 6, 2006 letter as the "technology
development branch," while Scrollex was noted as performing the "operations" of the affiliated companies.
Based on the representations made by the petitioner's president in the same letter, the beneficiary would
possess managerial authority over the petitioner's daily operations, and, because of the parent-subsidiary
relationship, the beneficiary's "managerial functions may extend to Scrollex." The job responsibilities
subsequently outlined in the same letter were identified as relating to the management of the petitioning
entity, with the largest amount of time, or 25 percent, to be spent by the beneficiary developing and
implementing marketing trends, determining new markets and products, and developing relationships via the
telephone or in person with governmental agencies and organizations in North and Latin America. The AAO
stresses that the named job responsibilities do not specifically address or identify Scrollex. Also, the
petitioner's initial representations in its August 29, 2005 letter solely pertain to the beneficiary's oversight of
the petitioner's day-to-day operations and developing its product line and market share.
In contrast, subsequent correspondence, including counsel's brief on motion and the president's affidavit,
focused on the beneficiary's dual role as "an executive or manager for [the petitioning entity] and its
subsidiary, Scrollex," and emphasized business negotiations completed by the beneficiary on behalf of
Scrollex. Despite naming the beneficiary as a general manager of Scrollex, his purported role within the
company, particularly with respect to his claimed full-time employment as the general manager of the
petitioning entity, has not been reconciled. The petitioner's initial claim that the beneficiary would have some
interaction with Scrollex appears to have been modified into a dual management role between the petitioning
entity and Scrollex. The AAO 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 ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971).
The AAO recognizes that in the case of related companies, employees may be required to work among the
affiliated companies. It would be reasonable, however, to assume that an employee would hold a position
specific to a particular company. In the present case, the beneficiary is represented as holding the position of
general manager in both the petitioning entity and Scrollex, during which he would be performing primarily
managerial or executive tasks for both companies. The relevant statute and regulations require that the
beneficiary assume employment in a primarily managerial or executive capacity with the United States
employer filing the immigrant visa petition, or, in other words, the petitioning entity. See 8 C.F.R.
§ 204.5(j)(1); see generally § 203(b)(l)(C) of the Act. It is not clear from the record whether the named job
responsibilities are illustrative of the tasks the beneficiary would primarily perform in the petitioning entity,
as the latter job descriptions emphasized the beneficiary's role as Scrollex's general manager. The actual
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Moreover, the petitioner merely mentioned the
beneficiary's role as general manager of Scrollex without clarifying how the beneficiary's employment in the
petitioning entity, excluding those job responsibilities associated with Scrollex, w~uld be primarily
managerial or executive in nature. 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
Page 17
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of
Ho, 19 I&N Dec. at 591-92.
Additionally, the petitioner has not clarified discrepancies in both its purported staffing levels and the
employees' related job responsibilities. The beneficiary is represented as supervising the company's office
president, corporate manager, technical manager, and financial manager. The AAO notes that while the
petitioner claimed to employ a five-person staff at the time of filing, the company's September 30, 2005
quarterly federal tax return identifies a staff comprised of two employees during the month the Form 1-140
was filed. The limited record does not identify which two workers were employed on the filing date, or
whether the claimed subordinate staff is ~onsidered, or compensated as, officers rather than employees of the
corporation2• The AAO notes that combined February through March 2006 financial worksheets for the
petitioner and Scrollex identify the purported corporate, technical, and financial managers as receiving
officer's salaries. Yet, as the financial statements related to both the petitioner and Scrollex, and because at
least two of the beneficiary's subordinate employees, the office president and corporate manager, are
identified on corporate documentation as officers of Scrollex, it is not clear from which specific company the
"officers" are being compensated, or whether they may be considered employees of the petitioning entity.
The current record does not corroborate the petitioner's claim of employing four workers subordinate to the
beneficiary. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Based on the limited
evidence relating to the purported subordinate staff, it is questionable whether a subordinate staff exists to
perform the claimed job responsibilities. Doubt cast on any aspect of the petitioner's proof may, of course,
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa
petition. Matter ofHo, 19 I&N Dec. at 591.
Even if the AAO were to consider the petitioner's five-person staff, the record does not reconcile
discrepancies in the job responsibilities claimed to be held by the beneficiary with those held by his purported
subordinate staff. Among other tasks, the beneficiary is represented as developing business contacts via the
telephone or by traveling in person "to describe scroll technology and explain its benefits, uses and
implementation," coordinating such business transactions as "demand forecasting, order processing, inventory
and quality control, project management, cost analysis, and customer service," and coordinating
manufacturing activities among the organization and its suppliers. However, based on the limited job
descriptions offered for the subordinate positions, it would seem that either the office president or corporate
manager, if employed, would instead be responsible for performing these tasks, as they are claimed to be in
charge of the company's business development, marketing, sales, customer and corporate relations, and
product development, including tracking. The ambiguity in the petitioner's true staffing levels together with
the apparent overlap in the employees' job duties, again raises uncertainty as to whether a subordinate staff in
fact existed to perform the named responsibilities, or rather, whether the beneficiary would be required to
assume these responsibilities because of the absence of a subordinate staff.
The· record also creates uncertainty as to the beneficiary's true employment capacity, because whereas the
company's president identified him as the directing both the petitioning entity and Scrollex in "business
2 The AAO notes that in 2002 and 2004, the petitioner's purported corporate manager, signed as "manager" on
documentation relating to the petitioner's business.
Page 18
projects" with outside companies, only one agreement in the appended documentary evidence bears the
beneficiary's signature, Moreover, on this particular sales representation contract, the beneficiary signed on
behalf of Scrollex. As discussed above, this is not representative of the beneficiary's purported managerial or
executive employment with the petitioning entity. The remaining representative agreement, component
supply and distribution agreement, and mutual nondisclosure agreements, the majority of which identify
Scrollex as the relevant party, bear the signatures of either the petitioner's purported office president or
corporate manager in their capacity as officers of Scrollex. As a result, the record does not corroborate the
petitioner's claim that the beneficiary would be employed by the petitioning entity in a primarily managerial or
executive capacity. Going on record without supporting documentary evidence is not sufficient for purposes
of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
Counsel also challenges the director's finding that the beneficiary would be performing tasks related to the
company's marketing and sales functions, stating that the beneficiary would be negotiating "technology
licensing agreements, technology development agreements, sales representation agreements, joint venture
agreements, minority ownership agreements, and nondisclosure agreements, all of which are the types of
agreements which typically require the attention and direction of high level executives and managers,"
Again, as noted above, the referenced agreemen~, only one of which bears the beneficiary's signature on
behalf of Scrollex, are not illustrative of the beneficiary's employment as a manager or executive in the
petitioning entity. Further, as noted by the director, the initial job responsibilities that related solely to the
beneficiary's employment with the petitioning entity, suggest that at least 25 percent of his time would be
spent personally speaking or meeting with potential customers "to describe scroll technology and explain its
benefits, uses and implementation." Based on this representation, it appears that the beneficiary would be
personally responsible for selling the petitioner's product, in this case, its technology, despite counsel's
suggestion otherwise. Without documentary evidence to support the claim, the assertions of counsel will not
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence.
Matter ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983);
Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
The AAO will also consider the eight "executive functions" outlined by the petitioner's president in his
affidavit for evidence of the beneficiary's employment in a primarily managerial or executive capacity. The
beneficiary is identified as planning strategies, building relationships, organizing operations, approving
budgets, delegating responsibilities, evaluating employees' performances and the company's annual
performance, and approving sales and marketing strategies, while meeting with "key customers," tasks that
appear to be managerial or executive in nature. However, in light of the discrepancies discussed above, the
list of job duties, by itself, is not sufficient to demonstrate the beneficiary's role in a primarily managerial or
executive capacity, particularly with respect to delegating tasks to the petitioner's staff and outside
contractors, who, the AAO notes, have not been identified. Considered in conjunction with the remaining
record, it is questionable whether some of the beneficiary's responsibilities, such as "relationship building,"
and his role in the company's marketing and sales, can be considered managerial or executive in nature.
Despite the claims that the beneficiary would meet with the executives of key customers and maintain
relationships with partners, suppliers, and government officials, the beneficiary's role in personally
negotiating sales and marketing agreements with outside organizations calls into question whether these
responsibilities rise to the level of "executive" or "managerial." 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
Page 19
case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108.
Based on the foregoing discussion, the record as a whole does not corroborate the petitioner's claim of
employing the beneficiary as a manager or executive. The noted discrepancies have not been resolved so as
to deem the beneficiary to be employed in a primarily managerial or executive capacity. Accordingly, for this
additional reason, the appeal will be dismissed.
The AAO recognizes that CIS previously approved an L-IA nonimmigrant visa petition filed by the petitioner
on behalf 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 §§ IOl(a)(44)(A) and (B) of the Act, 8 U.s.c. § 1101(a)(44).
Although the statutory definitions for managerial and executive capacity are the same, the question of overall
eligibility requires a comprehensive review of all of the provisions, not just the definitions of managerial and
executive capacity. There are significant differences between the nonimmigrant visa classification, which
allows an alien to enter the United States temporarily for no more than seven years, and an immigrant visa
petition, which permits an alien to apply for permanent residence in the United States and, if granted,
ultimately apply for naturalization as a United States citizen. Cf §§ 204 and 214 of the Act, 8 U.S.c. §§ 1154
and 1184; see also § 316 of the Act, 8 U.S.C. § 1427.
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. § 103.8(d). 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-l petitions. See,
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d at
22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103.
Furthermore, if the previous nonimmigrant petition was 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 ofChurch 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 approval by denying the present immigrant petition.
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. 51 (2001).
Page 20
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. Here, that burden has
not been met.
ORDER: The appeal is dismissed.