dismissed EB-1C Case: Computer Sales And Repair

identifYing data deleted to 
prev~nt clearly unWarranted 
mvaslOn of personal privacy 
PUBLJCCOPY 
DATE: JUL 0 62011 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W" MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
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' § IIS3(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case, All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.S(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www_uscis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant to section 
203(b )(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1 )(C), as a multinational 
executive or manager. 
The director denied the petition, finding that the petitioner failed to establish eligibility for the immigration 
benefit sought. The director concluded that the petitioner failed to establish that I) the beneficiary would be 
employed in the United States in a managerial or executive capacity; 2) a qualifYing relationship exists 
between the petitioner and the beneficiary's foreign employer; and 3) the petitioner has the ability to pay the 
beneficiary's proffered wage. 
On appeal, counsel disputes the denial, pointing to the director's reference to an incorrect position title when 
discussing the beneficiary's proposed employment and asserting that the director's findings were erroneous. 
Although the AAO acknowledges the director's erroneous reference to a food marketing manager when 
addressing the beneficiary's proposed position with the U.S. entity, the inadvertent error was insignificant and 
had no bearing on issues concerning the petitioner's eligibility. Moreover, the fact that the director made 
specific references to documents and information that are in the record of proceeding is a clear indicator that 
the adverse decision was based on the director's analysis of relevant factors that directly concern the 
petitioner'S eligibility. 
Additionally, while the AAO concurs with the director's findings regarding the first two grounds cited as 
alternate bases for ineligibility, the record does not support the director's finding with regard to the third 
ground dealing with the petitioner's ability to pay. As observed by the director, the IRS Form W-2 for 2008 
that was issued to the beneficiary shows that the petitioner was paid the proffered wage during the year the 
Form 1-140 was filed. The Form W-2 therefore serves as primajacie evidence of the petitioner's ability to 
pay the proffered wage as required by 8 C.F.R. § 204.5(g)(2). While the wages paid to other employees may 
assist the director in making adverse findings regarding other eligibility factors, only those wages paid to the 
beneficiary himself will contribute to a finding regarding the petitioner's ability to pay the beneficiary'S 
proffered wage. Accordingly, the AAO hereby withdraws the third ground as a basis for denial and will focus 
on the first two grounds for the remainder of this discussion. 
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 
Page 3 
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)(I)(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 petitioner submitted sufficient evidence to establish that the 
beneficiary would be employed in the United States in a qualitying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 I 01 (a)(44)(B) of the Act, 8 U.S.C. § I 10 I (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
Page 4 
(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. 
In a letter dated October 20,2008, which was submitted in support of the Form 1-140, the beneficiary, in his 
capacity as president of the petitioning entity, provided the following description of the proposed position: 
As [p ]resident of [the petitioner], I provide corporate leadership in the overall direction, 
operation, and expansion of the computer sales and repair businesses. . .. I also establish 
and maintain all corporate relationships with wholesale distributors of computer equipment 
and accessories. I negotiate all business transactions and liaise with [the] CPA to overseeing 
[sic] the company's financial matters .... I maintain consistent employment of two full-time 
[s]tore [g]eneral [m]anagers, one part-time [c]omputer [t]echnician, and several other outside 
contractors, like the CPA consultant. . .. Thus, through the technical store managers, I direct 
and control the activities related to technical services. I make all important policy decisions 
affecting the organization, and have the authority to hire and fire employees. Accordingly, I 
function in an executive/managerial capacity with [the petitioning entity]. 
The beneficiary added that in addition to his duties with the existing computer business, he was also in the 
process of "developing" a steel import business. 
The petitioner also provided numerous sales and purchase invoices, advertising contracts, and a copy of its 
organizational chart showing the beneficiary at the top of an organization that is comprised of two store 
managers, a computer technician, and a CPA consultant. 
On June 2, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a supplemental description of the beneficiary's proposed employment listing the beneficiary's job 
duties, percentage oftime that would be assigned to each duty, the number of subordinates who would report 
to the beneficiary, and the subordinates' job duties and educational levels. The petitioner was also asked to 
provide its payroll summary, IRS Form W-2s, IRS Form 1099, and/or any other compensation paid in 2007 
and 2008. The petitioner was asked to provide as much detail as possible in the response. 
The petitioner responded with a letter, dated July I, 2009, from counsel, who claimed that the petitioner's 
lower-level personnel will relieve the beneficiary from having to primarily perform non-qualifYing tasks. 
Counsel also referred to a letter from an expert who claimed to have evaluated the beneficiary's position and 
deemed the position as that of an executive. Counsel claimed that the expert opinion establishes that the 
beneficiary's position fits the legal definition of executive capacity. Counsel also cited unpublished AAO 
decisions in support of his assertions. 
Page 5 
The petitioner's supplemental documentation in response to the RFE included another copy of the 
organizational chart that was previously submitted in support of the petition as well as a percentage 
breakdown of the proposed employment. 
In the response to the RFE, the petitioner indicated that the beneficiary's time would be allocated as follows: 
20% to overseeing the store managers, who would carry out customer service functions and oversee the work 
of the computer technician, reviewing reports and financial status updates from the store managers, 
identitying and prioritizing problems to be resolved, and reviewing the store managers' performances; another 
20% to making decisions such as the hiring and firing of employees, implementing policy changes based on 
performance reports and company goals, and expanding business operations; 15% to providing corporate 
leadership regarding the direction, operation, and expansion of the computer sales and repair business, 
including evaluating managers' presentations of project feasibility and building a team environment among 
personnel; 10% to maintaining business relationships with product distributors; 5% to negotiating business 
transactions such as real estate leases and vendor contracts; 10% to communicating with the CPA regarding 
the company finances by reviewing federal and state tax reporting; 10% to developing expansion goals to 
engage in additional business activity; and the remaining 10% would be allocated to delegating technical 
service activities to store managers and optimizing IT services. 
Regarding the remaining employees, the petitioner indicated that both store managers and the computer 
technician require bachelor degrees and indicated that the store managers would sell computers, software, and 
accessories and that all three employees would perform computer repair services. The petitioner also 
provided the IRS Form W-2s for 2008 issued to the beneficiary, its two store managers, and the computer 
technician, as well as numerous service and repair invoices showing orders that were taken in by each of the 
store managers. 
On August 6, 2009, the director issued a decision denying the petition. The decision was based, in part, on 
the conclusion that the petitioner failed to establish that the beneficiary'S proposed employment with the U.S. 
entity would be within a qualitying managerial or executive capacity. The director observed that the wages 
paid to the beneficiary'S subordinates indicate that the subordinates were not employed on a full-time basis. 
The director found that, given the petitioner's operation of two store locations and the limited staff available to 
support the operation of those locations, the beneficiary'S employment would not primarily consist of tasks 
within a qualitying managerial or executive capacity. 
On appeal, counsel challenges the director's decision urging the AAO to defer to USCIS's prior approvals of 
the petitioner's L-l employment of the beneficiary. Counsel asserts that the prior approvals serve as 
"indisputable fact" that the petitioner is eligible for the immigration benefit sought herein. Counsel's 
contention, however, is incorrect and will not lead to a reversal of the director's decision. 
Although the AAO acknowledges that both the immigrant and nonimmigrant visa classifications rely on the 
same definitions of managerial and executive capacity, 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 §§ 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). USCIS is not required to assume 
the burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. Despite counsel's argument to the 
contrary, the approval of a nonimmigrant petition in no way guarantees that USCIS will approve an 
immigrant petition filed on behalf of the same beneficiary. USCIS denies many [-140 immigrant petitions 
Page 6 
after approving prior nonimmigrant 1-129 L-l pelltlOns. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 25; lKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd v. 
Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
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). 
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 (ED. La.), afj'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.C!. 51 (2001). 
Additionally, the AAO notes that counsel's reliance on internally generated service memoranda and 
unpublished AAO decisions is misplaced. With regard to the former, the AAO notes that 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)). 8 C.F.R. § 103.3(c) provides that only 
AAO precedent decisions are binding on all USCIS employees in the administration of the Act. There are no 
regulatory provisions that make unpublished decisions similarly binding. As such, neither the cited service 
memorandum nor the unpublished AAO decisions will serve to overcome the director's decision. 
That being said, the AAO finds that counsel was equally misguided in his reliance on the expert opinion of a 
third party whose expertise in the arena of immigration law was neither claimed nor established. It is noted 
that, while the AAO may, in its discretion, use as advisory opinion statements submitted as expert testimony, 
where an opinion is not in accord with other information or is in any way questionable, the AAO is not 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 
(Comm. 1988). 
Here, the petitioner offers expert testimony from an individual whose opinion is based primarily on the 
statements provided to him by the beneficiary. There is no evidence that the expert has any personal 
knowledge of the beneficiary's specific tasks within the organizational hierarchy that existed at the time of 
filing the petition; nor is there any evidence that the individual whose expert testimony has been offered is an 
expert in immigration law such that his assessment of the beneficiary's proposed job duties was issued in light 
of the relevant statutory and regulatory provisions. Thus, the expert opinion that is offered here is little more 
than an extension of the petitioner's own claim, which must be corroborated with adequate supporting 
documentary evidence in order to enable the petitioner to meet its burden of proof in these proceedings. 
Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Page 7 
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 AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. In the present matter, the record lacks a comprehensive description of the beneficiary's specific day-to­
day tasks and does not adequately establish that the organizational structure that was in place at the time of 
filing the petition was sufficient either to support or require the services of an individual whose time would be 
primarily allocated to the performance of tasks within a qualifying managerial or executive capacity. 
While the beneficiary's job description is generally lacking in the specific information that is required to 
determine whether the position is one within a qualifying capacity, sufficient information was provided to 
lead the AAO to question the validity of the job description. Namely, the AAO notes that the job description 
offered in response to the RFE indicated that 20% of the beneficiary's time would be allocated to making 
personnel-related decisions including hiring and firing of employees. However, the record indicates that the 
petitioner was comprised of the same four employees during 2008 and that only one personnel change took 
place in 2009 after the petition was filed. The AAO therefore questions whether one fifth of the beneficiary's 
time would actually be allocated to making personnel-related decisions. 
The AAO further notes that Schedule E of the petitioner's IRS Form 1120, where the beneficiary and his wife 
are each identified as the petitioner'S corporate officers, indicates that the beneficiary's wife was said to only 
allocate 25% of her time to the business. The AAO therefore questions how effective the beneficiary's wife 
would be in managing one of the petitioner's two store locations and how, give the relatively small amount of 
time that she would dedicate to the business, the beneficiary's wife would be able to relieve the beneficiary 
from having to carry out the operational tasks required to manage the store location to which she has been 
assigned. Similarly, the AAO questions how the beneficiary could spend 10% of his time dealing with the 
CPA when federal and state tax reporting is done no more frequently than on a quarterly basis. 
Most importantly, the numerous invoices that were submitted in support of the Form 1-140 as part of Exhibit 
14 list the beneficiary as the primary contact person. The beneficiary's name also appears on the tag line of 
numerous emails that show the petitioner's online sale of computer equipment. Although the record also 
contains invoices showing other company employees taking orders and issuing invoices, the AAO cannot 
discount the beneficiary's role in providing customer service to the petitioner's clientele, particularly given the 
limited personnel and their limited work schedules. Although the AAO finds that the overly broad job 
description offered by the petitioner is one major downfall in establishing the beneficiary's managerial or 
executive capacity, it must be noted that, even in instances where the job description is satisfactory, the 
description alone is meaningless if the organization that seeks to hire the beneficiary does not have the human 
resources to relieve him from having to primarily perform non-qualifying operational job duties. 
Additionally, while the AAO acknowledges that no beneficiary is required to allocate 100% of his time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
would perform are only incidental to his/her proposed position. 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 IOI(a)(44)(A) and (8) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church SCientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). Here, in light of the deficient job description provided 
and the petitioner's lack of organizational complexity, the evidence on record does not lead to the conclusion 
Page 8 
that the beneficiary would more likely than not perform primarily managerial or executive job duties under an 
approved petition. Therefore, the instant petition cannot be approved. 
The other issue in this proceeding is whether the petitioner has a qualifYing relationship with the beneficiary's 
foreign employer. To establish a "qualifYing relationship" under the Act and the regulations, the petitioner 
must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer 
(i.e. a U,S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
§ 203(b)(I)(C) of the Act, 8 U.s.C. § 1 1 53(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
• * • 
Multinational means that the qualifYing entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining 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; 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). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
In the present matter, the director concluded that the petitioner failed to provide evidence establishing the 
ownership of the foreign entity, thus precluding USCIS from conducting a comprehensive analysis of the key 
elements that determine whether the necessary degree of common ownership exists between the foreign entity 
that employed the beneficiary abroad and the entity that seeks to employ the beneficiary in the United Slates. 
After reviewing the elements of the petitioner's claim, the AAO finds that the director overlooked a 
fundamental factor which, when considered, renders the director's ownership analysis unnecessary. Namely, 
Page 9 
the AAO focuses on the documentation in Exhibit 28, which the petitioner initially submitted in support of the 
Form 1-140. The exhibit includes a letter dated September 13,2008, signed by the deputy secretary of the 
Lahore Chamber of Commerce and Industry, which states that Akhtar Brothers, the foreign business where 
the beneficiary was employed prior to entering the United States to work for the U.S. petitioner, is a sole 
proprietorship belonging to the beneficiary. A sole proprietorship is a form of business in which one person 
owns all the assets of the business in contrast to a partnership, trust or corporation. Black's Law Dictionary 
968 (Abridged 6th Ed. 1991). Therefore, to the extent that the foreign business has been identified as a sole 
proprietorship and cannot be deemed a legal entity, I it does not fit either the definition of affiliate or 
subsidiary and cannot be deemed as having a qualifYing relationship with the U.S. petitioner, regardless of the 
claimed common ownership and control. 
Accordingly, while the AAO does not concur with the director's approach in arnvmg at the adverse 
conclusion with regard to the second ground that served as a basis for the denial, the AAO also finds that the 
petitioner failed to meet the filing requirement specified at 8 C.F.R. § 204.5G)(3)(i)(C). Therefore the petition 
must be denied on this basis as well. 
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. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed. 
I A legal entity is an entity, other than a natural person, who has sufficient existence in legal contemplation that it can 
function legally, be sued or sue and make decisions through agents as in the case of corporations. Id. at 620.