dismissed EB-1C Case: Computer Hardware Manufacturing

identifying data deleted to 
prevent 1 oarly unwarranted 
~nvasicm of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W ., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
'7' &f 
: ,@"$ 
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. 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. 
/ Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employrnent-based petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant 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. 
9 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California that is 
doing business as a manufacturer of personal computers, servers, CPU coolers, LCD personal computers, and 
digital video discs. The petitioner seeks to employ the beneficiary as its program manager for its business 
program with Corporation Intel. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary had 
been employed abroad or would be employed in the United States in a primarily managerial or executive 
capacity. 
Counsel for the petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion, 
and forwarded it to the AAO for review. On appeal, counsel contends that the organizational chart submitted 
to reflect the foreign entity's staffing levels identified the beneficiary's position of authority and outlined the 
project teams supervised by the beneficiary, as well as his job responsibilities. With regard to the 
beneficiary's position in the United States, counsel claims that the director failed to consider the "totality of 
the evidence submitted," particularly the beneficiary's success in securing "five to eight new Intel projects per 
year." Counsel submits a letter in support of the claims on 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 
Page 3 
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 two related issues in this proceeding are whether the beneficiary was employed abroad and would be 
employed in the United States in a primarily managerial or executive capacity. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. 3 1 IOl(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. $ 1101(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-malung; 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 instant immigrant petition on December 8, 2003 requesting that the beneficiary be 
employed in the position of "program manager - Intel." The petitioner noted on Form 1-140 its staff of thirty- 
five workers. 
Page 4 
In an appended letter, dated November 1 1, 2003, the petitioner stated that prior to the beneficiary's transfer to 
the United States in September 2003, the beneficiary held the same position as the one offered in the United 
States company. The petitioner explained that "the importance of the Intel program" necessitates that the 
beneficiary "be strategically relocated to the United State[s] . . . to oversee the global manufacturing process 
and marketing strategies for our Intel program." The petitioner further stated: 
As Program Manager, his duty includes: project control and creation of new projects, 
communicate with Intel upper level executive and administrative personnel, help eliminate 
communication barrier between Intel and China factory, quotation and RMA management, 
translate customer needs into product concepts and communicate the ideas to engineering 
team for ongoing actions, update latest market and product information with customer. 
The petitioner explained that the beneficiary's job duties as program manager in the United States company, 
wherein he would report to the general manager of the Taiwan company, remain the same as those performed 
while employed in this position in Taiwan. 
In an attached organizational chart, which counsel clarified on appeal depicted the position of the beneficiary 
in the foreign entity, the beneficiary's responsibilities were outlined as: 
Support all Intel project[s] 
Internal communication 
lSt customer interface 
Quotation of new project 
Lead different project team 
BOM Audit & Price Maintain 
The organizational chart identified the beneficiary as having occupied a position subordinate to the foreign 
company's president and vice-president. 
The petitioner also submitted a chart of the position to be held by the beneficiary and the related job duties. 
The following additional job duties were provided for the beneficiary's position as program manager for the 
company's Intel project: 
Project control and getting more project[s] 
Face to face communications with upper level executive and administrative personnel 
Help eliminate the communication barrier between Intel and China factory 
Quotation and RMA management 
Translate customer needs into product concepts and communicate these ideas to 
Engineering team for ongoing actions 
Updated latest market & product information with customer. 
The director issued a request for evidence, dated March 22, 2005, noting ambiguity in the organizational chart 
previously submitted, and questioning, in particular, whether the beneficiary held the responsibilities listed on 
the chart. The director asked that the petitioner provide a detailed description of the job duties performed by 
the beneficiary while employed overseas, as well as the job duties to be performed by the beneficiary in the 
United States. The director requested that the petitioner indicate the percentage of time the beneficiary spent 
and would spend on each task. The director also asked that the petitioner provide: (1) an organizational chart 
of both the foreign and United States corporations, clearly illustrating the employees subordinate to the 
beneficiary, and their job titles and job duties; (2) the beneficiary's Internal Revenue Service (IRS) Form W-2, 
Wage and Tax Statement, for the years 2003 and 2004; and (3) the petitioner's 2003 and, if available, 2004 
corporate tax returns. 
The petitioner's former counsel responded in a letter dated June 9, 2005. Counsel explained that the need for 
the beneficiary's employment in the United States stems from the unsatisfactory work of the prior program 
manager. Counsel stated that despite the beneficiary's change in location, his job duties and the nature of his 
position remain the same. Counsel submitted a chart of the beneficiary's job duties, which were outlined as 
follows: 
Sustaining Project Management, 5% 
Reply Intel's Engineering Change Request (ECR) and follow up the Engineering Change 
Order (ECO), 12% 
New Project Implement management (NPI), 20% 
Translate Customer's need into product concepts. 10% 
Creation of new projects and business, 10% 
Upper level communication, 8% 
Reply the Request For Quotation (RFQ) given by customer, 10% 
Reply Quality Complaint, 8% 
Day to day management, 12% 
Other mission, 5% 
The AAO notes that the chart provided descriptions of the beneficiary's role in relation to each job duty prior 
to and following his transfer to the United States. As the accompanying descriptions are already part of the 
record, they will not be repeated herein. 
Counsel also provided an organizational chart reflecting the beneficiary's proposed position in the United 
States organizational hierarchy. The beneficiary was identified as supervising seventeen employees, of which 
one was located in the United States, while the remaining employees were employed in the foreign company 
in Taiwan or in one of two factories in China. 
In a decision dated August 17, 2005, the director concluded that the petitioner had not demonstrated that the 
beneficiary had been employed abroad and would be employed in the United States in a primarily managerial 
or executive capacity. With regard to the beneficiary's employment overseas, the director noted that the 
petitioner had not provided an organizational chart of the foreign entity or descriptions of the job duties 
performed by the beneficiary's subordinate employees. The director additionally noted that the job 
descriptions offered for the beneficiary's position were unclear as a result of the translation into English. 
The director also concluded that the beneficiary would not be primarily employed in the United States as a 
manager or executive. The director noted an ambiguity in the information presented, stating that the 
beneficiary was identified both as the sole employee of the petitioner's "facility" and as directly supervising 
seventeen employees. The director noted that the employees identified as subordinates of the beneficiary are 
employed in Taiwan and China, but addressed the fact that the petitioner had not provided a detailed 
description of their job duties. The director stated "[ilt is not entirely clear if the petitioner is contending that 
Page 6 
the beneficiary directly supervises Intel employees or [the petitioner's] employees that are employed in other 
offices on different continents." The director concluded that, regardless, the beneficiary's role as a liaison 
between the petitioning entity and Intel was more consistent with that of an account manager, rather than one 
managing or supervising employees. Consequently, the director denied the petition on both grounds outlined 
above. 
The petitioner's present counsel subsequently filed an appeal contending that the beneficiary qualifies for the 
classification sought. Counsel claims that despite the director's finding to the contrary, the petitioner 
submitted the foreign entity's organizational chart reflecting the beneficiary's position overseas, during which 
he exercised "authority over all department heads as to Intel New Project Implementation (NPI) and 
sustaining project management." Counsel notes that in this position the beneficiary was directly supervising 
an individual identified as occupying the position of "Intel project manager Champion," who, in turn, was 
supervising the project managers for the "New Project Implementation," and coordinating manufacturing and 
"ECOs for the [company's] specific product lines." Counsel states that an additional responsibility held by the 
beneficiary in relation to his job duty of "New Project Implemention" was to select and train a project 
manager for each new Intel project. Counsel explains that because the project managers repeatedly change, 
they were not identified by name on the organizational chart, but rather by department. Counsel states: 
The beneficiary review[ed] and supervis[ed] the work of the [project managers] through their 
preparation of various [research and development] and Operational Performance Status 
reports, and weekly [New Project Implementation] meetings. In addition, any problems are 
immediately communicated to him through his [project managers] or directly from Intel 
personnel, so that solutions can be worked out without significant production setbacks. 
Although all of the operational abbreviations can be, admittedly, quite confusing, there 
should be no questions that, in the overall scheme, the beneficiary holds a high rank in a very 
large organization. This conclusion is only logical considering the volume of work, its 
technical and logistical complexity, and the value of such a large account to the petitioning 
organization. 
Counsel explained that the petitioning entity's offices are based in California, yet, the beneficiary spends the 
majority of his time at Intel's facility in Oregon, where he "work[s] closely with Intel's engineering 
management staff, in order to accommodate their complex and ever-changing product requests." 
Counsel also contends that Citizenship and Immigration Services (CIS) failed to consider the "totality of the 
evidence submitted" when denying the immigrant petition based on the finding that the beneficiary would not 
employed as a manager or executive in the United States. Counsel states: 
As stated in the detailed job description (previously submitted), since his relocation to the 
U.S., the beneficiary has been able to secure five to eight new Intel projects per year. These 
are large scale design and manufacturing projects that require the beneficiary's engineering 
management and marketing expertise from concept to design, from costing to competitive 
pricing, and from engineering to mass production. This is not a low-level sales engineering 
or production supervisory position. As stated in the job description, the position necessarily 
carries with it a large degree of responsibility and ultimate authority to make high-level 
decisions (such as price and timing commitments) regarding multi-million dollar contracts. 
Counsel explains the need for the beneficiary in the United States, stating that the manager who previously 
occupied the beneficiary's position lacked the authority to make critical decisions, and therefore caused a 
delay in projects. Counsel states that the beneficiary is more qualified for the position as a result of his 
knowledge of the foreign entity's capabilities in engineering, testing and production, and because of the 
authority granted to him to authorize contracts for the company. In response to the director's finding that the 
beneficiary would function more as an account manager, counsel states that the beneficiary should instead be 
considered the manager of a $45 million account comprised of five to eight engineering projects a year, with 
more than twenty-five ongoing projects involving research and development, engineering, testing and re- 
configuration of the manufacturing process. 
In support of the beneficiary's managerial role in the United States, counsel submits a letter fiom Intel, dated 
September 14,2005, in which the company's acting system development manager identifies the beneficiary as 
the "primary contact" for all of Intel's "New and Sustaining projects." Intel's manager further states that the 
beneficiary meets with the company's "System, Packaging, and Commodity managers" regularly, reviews the 
"specification of requirement" for any "request for quotation," and provides the related quotes. He further 
explains that following acceptance of the quote, "[the beneficiary] has ultimate responsibility for execution of 
the project, working hand in hand with the Intel team and providing much of the interface to the rest of the 
team at [the petitioning entity]." 
Upon review, the petitioner has not established that the beneficiary had been employed by the foreign entity 
or would be employed by the United States entity in a primarily managerial or executive capacity. As the 
nature of the beneficiary's position and his related job duties are the same for his employment both abroad and 
in the United States, the AAO will consider the beneficiary's employment in each company together herein. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties. See 8 C.F.R. tj 204.5(j)(5). The AAO acknowledges that the chart 
referenced by counsel on appeal, as compared to the remaining evidence in the record, acts as the greatest 
resource in interpreting the beneficiary's role as a project manager both abroad and in the United States. The 
AAO challenges, however, classification of the chart as a "detailed job description," and notes that, while 
lengthy, it does not describe the specific job duties related to each of the beneficiary's outlined 
responsibilities. Specifically, a majority of the job descriptions include an overview of the particular 
responsibility and identify goals either achieved or proposed through the beneficiary's employment. For 
example, with regard to the beneficiary's position overseas, the petitioner identified the challenges of 
"track[ing] the [engineering change orders] with mails and updated documents as requested by customers," 
"follow[ing] Intel's design and feedback our comments on production's [sic] capability and efficiency to 
Intel," and replying promptly to customer requests. The petitioner also noted the beneficiary's success in 
leading a "team" in creating new Intel projects. These descriptions provide more of an overview as to the 
particular functions related to the foreign entity's project with Intel. The remaining description provides a 
limited explanation of the beneficiary's related foreign job duties, including "work[ing] with PM manager 
frequently to confirm shipping," "working with the R&D and manufacturing department to confirm all the 
[engineering change orders] can be cut in as schedule[d]," "work[ing] with the factory and RD team to 
develop the products timely, successfully, and most competitively," communicating between the petitioner 
and Intel, "work[ing] with PM Champion to provide factory's Operation Performance Status report to Intel's 
upper level manager weekly," and working with the engineers to provide competitive price quotations and 
responses related to the quality of products. These vague statements offer only a general description of with 
whom the beneficiary worked and failed to sufficiently explain what the beneficiary did on a daily basis. The 
Page 8 
petitioner has not identified the specific managerial or executive job duties performed by the beneficiary as 
program manager of Intel. 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? The actual duties themselves will 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), afld, 905 F.2d 41 (2d. Cir. 1990). 
The job description of the beneficiary's position in the United States company is equally insufficient. Again, 
the petitioner noted accomplishments achieved by the beneficiary during his employment in the United States, 
including stabilizing shipping between the foreign company and Intel and increasing communications 
between "with higher-level manager." Additionally, the petitioner addressed responsibilities of the 
beneficiary and persons with whom the beneficiary would work, but did not identify specific managerial or 
executive job duties to be performed by the beneficiary. In particular, the petitioner stated that the beneficiary 
would hold weekly conferences with Intel and the foreign company, "instruct [the] [engineering change order] 
controller to collect all the related information," chose project managers for each "new project implement" 
project, educate the project managers and internal research and development team on communicating with 
Intel's customers, review "specification of request" details with the project managers and research and 
development personnel, "provide efficient management and well face-to-face communication with Intel," 
attend bi-weekly system integration meetings at Intel "to synchronize the methodology," and assign 
employees to provide price quotes to customers and address customer service issues. The offered job 
description is essentially an overview of the beneficiary's proposed responsibilities, and is especially vague in 
explaining the beneficiary's managerial or executive role in relation to the named project managers and 
"teams." This is particularly true with regard to the "new project implement management" function, a task on 
which the petitioner represented the beneficiary would spend the most time. The petitioner stated: 
[The beneficiary] work with OEM manager defining a dedicate Project Manager to each NPI 
project, and educate these PM studying the spec and help them communicating with Intel 
customer and internal R&D team without getting any misunderstanding. Not only [the 
beneficiary] supervise the entire NPI meeting weekly, but also he face to face communicate 
Intel's design team to catch all the change in the developing stage promptly. 
Because of his on-site support at [Intel's facility], most of Intel's questions can be answered 
promptly without time zone limited. 
Despite the somewhat fragmented description, which as the director noted in his decision causes difficulty in 
clearly understanding the beneficiary's role in the foreign and United States entities, the petitioner's 
description only generally addresses the actual responsibilities and level of authority held by beneficiary. It is 
unclear what specific managerial or executive tasks the beneficiary would perform. The petitioner has not 
identified the "OEM manager" with whom the beneficiary would work, or the specific job duties each would 
perform with regard to the "new project implementation." 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. 
The AAO notes that the petitioner's use of acronyms in the beneficiary's job description without further 
clarification of each process makes it particularly difficult to examine and understand the true managerial or 
executive job duties of the beneficiary. Following the director's reference to the ambiguities resulting from a 
Page 9 
translation into English, counsel merely acknowledges on appeal the "confusing" operational abbreviations, 
yet contends that the beneficiary's "high rank" in the organization should be evident from the "overall 
scheme." Absent an explanation of the operational abbreviations, whose interpretation influences the analysis 
of the beneficiary's job duties, counsel's blanket claim that the beneficiary has been and would be employed 
in a primarily qualifying capacity is not sufficient. This is particularly appropriate in light of the director's 
note of uncertainty and confusion with regard to the beneficiary's job descriptions. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter ofRarnirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). 
The lack of description creates further confusion in determining whom the beneficiary supervised or would 
supervise. The petitioner noted on Form 1-140 a staff of thirty-five employees. Its organizational chart, 
however, identifies one employee in the position of internal sales. Clarification of the petitioner's staff is 
essential to determining whether a sufficient subordinate staff would support the beneficiary in his purported 
managerial or executive role. Also, the petitioner represents that the beneficiary would interact with Intel's 
customer and research and development teams. Intel's research and development group, however, was not 
identified on either organizational chart as a department subordinate to the beneficiary. In fact, as noted 
above, on the petitioner's organizational chart, the sole United States employee purportedly supervised by the 
beneficiary is in internal sales. If the beneficiary was supervising the sales and research and development 
teams while employed in Taiwan, the petitioner has not explained how the beneficiary could effectively 
supervise departments in the United States. Counsel states on appeal that since the beneficiary's transfer to 
the United States, he has devised a computer program to track the work of project managers and teams, 
however, this does not reconcile the beneficiary's purported supervision of these teams prior to his transfer. 
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)). 
Furthermore, although requested by the director, the petitioner has not provided a description of the job duties 
performed by the subordinates supervised by the beneficiary while employed overseas and in the United 
States. This information is essential to clarifying the beneficiary's role in each organization, as well as 
confirming that the beneficiary is supported in a primarily managerial or executive position. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103,2(b)(14). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary had been employed 
overseas or would be employed in the United States in a primarily managerial or executive capacity. 
Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether the petitioner demonstrated its ability to 
pay the beneficiary's proposed salary of $40,000. See 8 C.F.R. 5 204.5(g)(2). In determining the petitioner's 
ability to pay the proffered wage, CIS will first examine whether the petitioner employed the beneficiary at 
the time the priority date was established. If the petitioner establishes by documentary evidence that it 
employed the beneficiary at a salary equal to or greater than the proffered wage, this evidence will be 
considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In the present matter, 
the petitioner did not establish that it had previously employed the beneficiary at the proffered salary. The 
Page 10 
AAO notes that the beneficiary's IRS Form W-2 for the year 2003 indicates that the beneficiary received a 
salary of approximately $21,000. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income. 
623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have considered 
income before expenses were paid rather than net income. Finally, there is no precedent that would allow the 
petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
As the petition's priority date falls on December 8, 2003, the AAO must examine the petitioner's tax return for 
2003. The petitioner's IRS Form 1120 for calendar year 2003 presents a net taxable income of approximately 
-$I ,05 3,000. The petitioner could not pay the beneficiary's proffered salary. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has as of the 
date of filing and is the amount of cash or cash equivalents that would be available to pay the proffered wage 
during the year covered by the tax return. As long as the AAO is satisfied that the petitioner's current assets 
are sufficiently "liquid" or convertible to cash or cash equivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. The petitioner's net 
current assets are not sufficient to pay the beneficiary his $40,000 salary. For this additional reason, the 
petition will be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The AAO notes the beneficiary's prior L-1A nonimmigrant petition approval. 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 nonirnmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $9 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 3 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 
Page 11 
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. 
Because CIS spends less time reviewing L-1 petitions than Form 1-140 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 prooc 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. Suva, 
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 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 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 nonimrnigrant 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). 
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.