dismissed EB-1C Case: Computer Products

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PUBLIC COPY 
U. S. citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
LIN 06 245 50048 
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 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Po9 F. Grissom 
king Chief Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a California corporation engaged in the sale of computer, electronics, and 
telecommunication products and services to technology firms, which are located in the United 
States. It seeks to employ the beneficiary as its president and CEO. Accordingly, the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel disputes the denial and submits a brief in an effort to overcome the director's 
findings. After a thorough review of the documentation on record, the AAO finds that the first 
ground in the director's decision was not warranted, as the record contains sufficient evidence to 
establish that the beneficiary was more likely than not employed abroad in a qualifying managerial 
or executive capacity. Accordingly, the first ground for denial is hereby withdrawn and the 
remainder of this decision will focus primarily on the remaining ground for denial, i.e., whether the 
petitioner provided adequate documentation to establish that it would employ the beneficiary in a 
qualifying managerial or executive capacity in his position with the U.S. entity. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The primary issue in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the U.S. entity, at the time the 
Form 1-140 was filed, was capable of sustaining the beneficiary in a qualifying managerial or 
executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (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; 
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(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. 
In support of the Form 1-140, the petitioner submitted a letter dated August 1, 2006 in which the 
beneficiary was referred to as the "highest executive officer" with the authority to establish all 
business contracts and marketing strategies; hire computer professionals, attorneys, and other staff 
members; and make the budget, inventory, and purchasing decisions. The petitioner stated that the 
beneficiary oversees policy implementation and directs all operations with minimal supervision from 
the directors of the foreign entity. 
On November 5, 2007, the director issued a request for additional evidence (RFE) instructing the 
petitioner to supplement the record with the following: 1) a statement explaining whether the 
beneficiary's proposed position is within a managerial or executive capacity; 2) a detailed description 
of the beneficiary's proposed day-to-day duties identifying the specific daily tasks that would be 
performed accompanied by an estimate of time that would be devoted to each task; 3) the petitioner's 
organizational chart illustrating the beneficiary's position with respect to others in the hierarchy, 
including brief job descriptions of the beneficiary's subordinates, if any; and 4) financial 
documentation, including all W-2 statements issued by the petitioner in 2006 and the petitioner's 
2005 and 2006 tax returns. 
In response, the petitioner provided a letter dated January 3, 2008 (exhibit E) in which the petitioner 
reiterated the job description that was initially submitted in support of the Form 1-140 as well as the 
following percentage breakdown: 
Direct Supervision of Managerial and Professional Employees: [The beneficiary] 
will continue to supervise and control the work of his directors for each division. . . . 
[He] will also direct the work of professional independent contractors, such as legal 
counsel. Although as independent contractors these individuals may not be classified 
as "employees," their work will be directed, supervised, and performed under the 
authority of [the beneficiary]. (Approximately 25% of time) 
Negotiations: 
 [The beneficiary] will engage in negotiations with large national 
corporations, and international manufacturers. These entities demand to negotiate 
with managers and executives with the power to enter into binding arrangements. 
[The beneficiaryl's reputation within the industry will serve as a tremendous asset for 
the company. (10% of Beneficiary's time) 
Contracts Supervision: Coordinate all new contracts with attorneys in the U.S. and 
abroad. He also reviews the terms of proposed contracts and agreements drafted by 
the clients and counsel. (10% of time) 
Page 5 
Public Relations in the U.S.: 
 [The beneficiary] is expected to maintain a close 
relationship with each client, purchasing managers and decision makers to ensure and 
maintain the growth and development of successful business relationships, and the 
highest level of satisfaction. He will also forge relationships with executives of large 
computer corporations; and other industrial groups. He also plans on expanding the 
company to build a warehouse in the U.S. . . . (1 5% of time) 
Monthlv Work Plan: [The beneficiary] will review and approve the monthly work 
plans for the staff, which includes the monthly calendar of events, sales projections 
for the month, [and] goals [for] the month. (5% of time) 
Hold Weeklv Meetings: 
 [The beneficiary] will hold a weekly meeting with his 
directors in which the week's operations are reviewed, promotions and strategies are 
discussed, any special projects are discussed, and the overall progress of the company 
is considered. These meetings also allow the staff to directly communicate with [the 
beneficiary]. These meetings are intended to remedy some of the problems that 
contributed to the company's inefficiencies during the first years of operations. (10% 
of the Director's time) 
Review of the Monthly Financial Statements: [The beneficiary] will review and 
analyze the monthly financial statements and discuss them with his CFO. (5% of 
time) 
Set Policies and Longl-]Term Strategies: [The beneficiary] will regularly analyze a 
host of social, political and economic variables, and devise the company's broad 
economic policies, long-term strategies and practices, and supervise their 
implementation. He devises and directs the firm's marketing and business strategies. 
While he will advise our parent company in Taiwan regarding his decisions and keep 
them abreast of proposed developments, he exercises wide latitude of discretionary 
decision making, with minimal supervision. . . . (Approximately 20% of time) 
The petitioner also provided its organizational chart, which depicts a multi-tiered hierarchy headed 
by the beneficiary. The interim international senior sales, marketing, and operations manager is 
identified as the beneficiary's direct subordinate at the next tier in the petitioner's hierarchy. It is 
noted, however, that this individual is shown to be an employee of the foreign entity. 
Notwithstanding this factor, the employees at the third tier in the hierarchy, i.e., the chief financial 
officer (CFO), the director and manager of engineering, an interim sales representative, a shipping 
and receiving clerk, and a corporate attorney, are all illustrated as the direct subordinates of the 
foreign employee. The next tier of employees consists of an accountant, who is supervised by the 
CFO, and the manager of new product development, who is supervised by the director and manager 
of engineering. Finally, two senior engineers are shown at the bottom tier of the hierarchy as the 
direct subordinates of the manager of new product development. 
As previously noted, the employee shown as the beneficiary's direct subordinate was identified as an 
employee of the foreign entity. The petitioner did not submit any documentation showing that it 
remunerated this individual at the time the Form 1-140 was filed. The petitioner did provide the W-2 
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statements it issued in 2006, numerous pay stubs for employee wages in 2007, as well as the 
petitioner's quarterly wage reports for 2007. The 2006 W-2 statements that were provided establish 
that the following employees, who were listed in the organizational chart, were employed at the time 
the Form 1-140 was filed: the beneficiary, the CFO, the director and manager of engineering, the 
mana er of new roduct development, the shipping and receiving clerk, and one other employee 
whose salary indicates that heishe was not employed during all of 2006 and 
who was not identified in the petitioner's organizational chart. It is further noted that no evidence 
was submitted to show the petitioner ever compensated, who was identified on the 
organizational chart as the company's interim sales representative. 
 Thus, it is unclear who, if 
anyone, was performing the duties of the sales representative at the time the Form 1-140 was filed. 
On April 2, 2008, the director denied the petition, finding that the petitioner failed to show that it 
was sufficiently staffed at the time the Form 1-140 was filed such that it would have been able to 
relieve the beneficiary from having to primarily perform non-qualifying tasks. The director properly 
observed the lack of evidence showing the petitioner's employment of and also 
pointed out that the individual identified in the position of senior sales, marketing, and operations 
manager is an employee of the foreign entity. 
On appeal, counsel contends that the director's decision was erroneous, asserting that instead of 
exercising de novo review when determining the petitioner's eligibility, the director should have 
referred to the prior approval of the petitioner's L-1A nonimmigrant petition for the same 
beneficiary. Counsel further contends that U.S. Citizenship and Immigration Services (USCIS) 
instructional memoranda as well as prior AAO decisions support the argument that in light of a prior 
approval of an L-1A nonimmigrant petition USCIS may only deny a subsequently filed immigrant 
petition upon a determination that the nonimmigrant petition had been approved due to gross error. 
Counsel's arguments, however, are not corroborated by statute, regulation, or precedent case law. 
Contrary to counsel's assertions, USCIS memoranda merely articulate internal guidelines for service 
personnel; they do not establish judicially enforceable rights. An agency's internal personnel 
guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon which 
[they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. 
O'Neill, 806 F.2d 1262, 1264 (5th Cir.1987)). 
Furthermore, even if the AAO were to review its prior unpublished decisions, counsel has provided 
no evidence that any of those decisions support his assertions, as the AAO has repeatedly stated in 
numerous decisions that a prior approval(s) of an L-1A nonimmigrant petition in no way serves to 
guide USCIS in its determination of whether the same petitioner of an 1-140 immigrant petition is 
eligible to classify the designated beneficiary as a multinational manager or executive. Moreover, 
notwithstanding counsel's unsupported arguments, his reliance on unpublished AAO decisions is 
erroneous, as only precedent decisions are binding on USCIS employees in the administration of the 
Act. See 8 C.F.R. § 103.3(c). 
Additionally, on page three of the appellate brief, counsel asserts, "A special definition of manager 
and executive applies when the transferee is coming to set up a new U.S. office . . . ." It is noted, 
however, that the provision referenced by counsel applies to nonimmigrant petitioners seeking L-1 A 
intracompany transferee status for the beneficiaries on whose behalf the petitions have been filed. 
See 8 C.F.R. $5 214.2(1)(l)(ii)(F) and (3)(v) for the definition of a new office petitioner and the 
filing requirements that apply to a new office petitioner, respectively. There are no provisions in 
8 C.F.R. 204.5(j) that distinguish between a new office petitioner and a petitioner that has been in 
operation for an extended period of time. 
Next, while counsel properly points out that the WE did not ask for a detailed description of the job 
duties of the beneficiary's subordinates, the AAO points out that the RFE did ask for a detailed list of 
the beneficiary's specific daily tasks. It is noted that in examining the executive or managerial 
capacity of the beneficiary, USCIS will look first to the petitioner's description of the job duties. See 
8 C.F.R. 5 204.5(j)(5). Precedent case law reiterates the significance of a detailed job description, 
establishing that the actual duties themselves reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The 
AAO finds that the petitioner did not comply with the latter instruction and that instead another 
general description of broad job responsibilities was provided. For instance, the petitioner indicated 
that approximately 25% of the beneficiary's time would be devoted to directing the supervision of 
managerial and professional employees, indicating that someone other than the beneficiary would 
actually be supervising these individuals. The petitioner's organizational chart suggests that perhaps 
such supervision would be assigned to the senior sales, marketing, and operations manager. 
However, as previously noted, the petitioner indicated in the chart that this person is actually 
employed abroad by the foreign entity. As the petitioning and foreign entities are not one and the 
same, the mere claim that the petitioner employs the services of another entity's employee is suspect 
without corroborating evidence that the employee whom the petitioner claims as part of its 
organizational hierarchy is actually remunerated by the petitioner for hislher services. In the present 
matter, the petitioner did not provide such corroborating evidence. 
Notwithstanding the above deficiency, the petitioner has not explained just how the beneficiary plans 
to direct the work of a professional staff. In other words the petitioner has failed to assign any 
specific tasks to elaborate on the means by which the beneficiary would fulfill his general oversight 
role within the petitioner's hierarchy. 
Also in need of further clarification is the beneficiary's responsibility in the area of public relations, 
to which the beneficiary would allocate 15% of his time. Without further explanation, the mere 
claim that the beneficiary would personally maintain a relationship with each of the petitioner's 
clients appears on its face to be a non-qualifying task. Furthermore, the AAO is unclear as to how 
the beneficiary initially forms relationships with the petitioner's clients and the managers and 
decision-makers of other companies. In other words, it is unclear who solicits the client companies 
and their managerial personnel. Although the petitioner previously identified one individual in the 
role of a sales representative, as pointed out earlier, the record does not contain documentation to 
establish that a sales representative was in fact employed by the petitioner at the time the Form 1-140 
was filed. Without further elaboration and additional documentation, it appears that at least 15% of 
the beneficiary's time would have been spent performing non-qualifying tasks. 
Lastly, the petitioner stated that 20% of the beneficiary's time would be spent analyzing a variety of 
factors to make policy and strategy decisions. However, the duties underlying this general 
responsibility are entirely unclear. Despite the director's express request for a list of specific tasks 
the beneficiary would perform on a daily basis, at least 60% of the beneficiary's time has been 
accounted for by the use of broad terminology that fails to convey a meaningful explanation of the 
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daily tasks the beneficiary was prepared to undertake at the time the Form 1-140 was filed. While 
the AAO acknowledges the beneficiary's role as the decision-maker and overall top-most individual 
within the petitioner's organizational hierarchy, neither factor establishes that at the time the Form I- 
140 was filed the petitioner was capable of sustaining the beneficiary in a managerial or executive 
capacity wherein the primary portion of the beneficiary's time would have been devoted to tasks of a 
qualifying nature. Neither the supporting evidence of the petitioner's staffing nor the petitioner's 
deficient description of the beneficiary's job duties allows the AAO to conclude that the beneficiary 
would be employed primarily in a qualifying managerial or executive capacity. For this reason, the 
petition may not be approved. 
Furthermore, the record does not support a finding of eligibility based on at least one additional 
ground that was not previously addressed in the director's decision. More specifically, 8 C.F.R. 
fj 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying relationship with 
the beneficiary's foreign employer. In the present matter, further review of the record has led the 
AAO to question the director's favorable finding regarding the issue of a qualifying relationship. 
Namely, the AAO notes that in response to the RFE the petitioner provided a copy of its stock 
transfer ledger indicating that a total of 10,000 shares of stock were issued for a total of $10,000. 
The record indicates that the transfer of stock took place on June 19,2000. The record also contains 
the petitioner's tax returns for 2005 and 2006, each containing Schedule L where No. 22(b) shows 
that the petitioner received a total of $80,000 in exchange for issuance of stock. Thus, the 
information contained in the stock transfer ledger and that contained in the petitioner's two most 
recent tax returns is inconsistent with regard to the amount of stock issue and the remuneration the 
petitioner received as a result thereof. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The record as presently constituted does not resolve the considerable inconsistency discussed herein. 
This inconsistency leads the AAO to question whether the petitioner has fully established matters 
concerning its ownership and control, which are the two factors that must be examined in order to 
determine whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 
(BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter 
of Hughes, 18 I&N Dec. 289 (Comm. 1982). Accordingly, the AAO cannot conclude that the 
petitioner has provided sufficient evidence of the requisite qualifying relationship with the 
beneficiary's foreign employer. 
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), afd, 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). Therefore, based on the additional 
ground of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
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enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.