dismissed EB-1C Case: Construction / Hair Salon

identifyhg data deleted to 
vent ~learly unwananted 
invasion of personal ~?:JI~Y 
U.S. Department of Iiomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
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) 
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 fiu-ther inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Ofice 
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 Florida entity claiming to be engaged in the business of construction and the operation of a 
hair salon. It seeks to employ the beneficiary as its general manager. Accordingly, the petitioner endeavors 
to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(C), as a multinational executive or 
manager. The director determined that the beneficiary was not employed abroad in a managerial or executive 
capacity and denied the petition. 
On appeal, counsel disputes the director's findings and provides a more detailed explanation of the 
beneficiary's duties during her overseas employment. 
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 addressed by the director in this proceeding is whether the beneficiary was primarily 
performing managerial or executive duties during her employment abroad. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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, hnctions 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. 8 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-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 petition, the petitioner submitted a letter dated September 22, 2004, which contained the 
following statements with regard to the duties performed by the beneficiary during her employment abroad: 
1. 
 [P]reliminary interviewing of job applicants and recommendation for hiring; 
2. 
 [Hluman resource liaison for all work-related issues; 
3. 
 [Sletting work schedule for workers; 
4. [Plreparation of employment contracts; 
5. 
 [Rleview of time cards, calculation of compensation owed, and forwarding of data to 
accountant for payment of salaries; 
6. 
 [Mlanagement of accounts receivable and payable; 
7. 
 [Rleviewing supplier invoices and approving payment; 
8. 
 [Nlegotiation of pricing for subcontractor services and building materials; 
9. 
 [rjnitial viewing of development properties and recommendations for purchase; 
10. 
 [Slhowing developed properties to potential buyers; 
1 1. 
 [Lliaison for customer relations, collections and customer satisfaction; 
12. 
 [Plreparation and presentation of proposals to clients. 
Citizenship and Immigration Services (CIS) subsequently issued two separate requests for additional evidence 
(RFEs). One WE was issued on October 24, 2005, and the other was issued on November 18, 2005. Both 
RFEs instructed the petitioner to provide further information regarding the beneficiary's foreign employment 
to assist in determining her employment capacity abroad. More specifically, the petitioner was instructed to 
provide a list of the beneficiary's duties, the percentage of time the beneficiary spent performing each duty, 
and an organizational chart, including the names and position titles of the beneficiary's subordinates as well as 
information about the educational levels of the subordinates. 
In response, the petitioner provided a letter dated December 12, 2005 in which counsel indicated that the 
beneficiary's position entailed supervising the foreign company's bookkeeper and researching, recommending 
and subsequently marketing properties for the company's chief executive officer. The petitioner also provided 
a percentage breakdown of the beneficiary's foreign job duties, which the director included in his January 12, 
2006 decision denying the petition. 
In the denial, the director concluded that the beneficiary's duties abroad were primarily of a nonqualifying 
nature and should be deemed daily operational tasks. 
On appeal, the petitioner expands on the beneficiary's various duties, explaining how each duty tied into the 
overall job responsibilities that were part of the beneficiary's position abroad. Thus, the petitioner has 
provided the AAO with a description that adequately illustrates the beneficiary's duties on a day-to-day basis. 
However, based on a thorough analysis of the information provided, the AAO cannot conclude that the 
beneficiary primarily performed qualifying duties. Rather, the information provided on appeal suggests that 
at least 57% of the beneficiary's time was spent performing the foreign entity's daily operational tasks, 
including research and analysis, showing the developed properties to the foreign entity's clientele, directly 
addressing customer service issues, and preparing and presenting proposals to clientele. It is noted that an 
employee who "primarily" perfonns 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 (Comrn. 1988). Thus, despite the 
beneficiary's discretionary authority and the professional nature of the duties she performed during her 
employment abroad, the AAO supports the director in his conclusion that the beneficiary's duties abroad were 
primarily of a nonqualifying nature. 
Additionally, the record suggests that the petitioner is ineligible for the benefit sought based on a number of 
issues that were not addressed in the director's decision. 
First, the petitioner has not established that the beneficiary's proposed position in the United States entails 
primarily managerial or executive duties. Neither the description of the beneficiary's duties nor the 
petitioner's organizational structure is indicative of an entity that requires and is able to employ the 
beneficiary in a primarily qualifying po ition. Rather, the record strongly suggests that the beneficiary's 
duties would primarily involve the sup elm sion of two nonprofessional employees and the performance of 
other tasks required to operate a beauty salon. 
Second, the regulation at 8 C.F.R. $204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the instant matter, the record indicates that the beneficiary's proffered wage is $36,000 per year. However, 
none of the documentation provided by the petitioner suggests that the petitioner is currently able to pay that 
wage. 
Third, the documentation provided by the petitioner regarding its ownership and control does not establish 
that a qualifying relationship necessarily exists between the petitioner and the beneficiary's foreign employer 
as required by 8 C.F.R. $204.50)(3)(i)(C). In support of the Form 1-140, the petitioner provided membership 
certificate no. 2 indicating that the foreign entity owns either all or part of the entity.' However, in response 
to CIS'S RFE, the petitioner provided membership 
 one year after certificate no. 
2. Certificate no. 3 indicates issued t and certificate no. 4 indicates 
that 40 units were issued t agreement reiterates this 
ownership breakdown, the recor ocurnentation to suggest what happened to membership 
certificate nos. 1 and 2. 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 ofHo, 19 
I&N Dec. 582,591 -92 (BIA 1988). 
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 
Unlike the two subsequent certificates issued by the petitioner, membership certificate no. 2 does not indicate how 
many units were issued. 
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). Therefore, based on the additional grounds of ineligibility discussed in the 
paragraphs above, this petition cannot be approved. 
As a final note, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, 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 $5 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 8 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimrnigrant 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 $4 204 and 214 of the Act, 8 U.S.C. $$ 1154 and 1184; see also 4 316 of the Act, 8 U.S.C. $ 1427. 
In addition, 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. 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 
immigrant 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. USDept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 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 IntX, 19 I&N Dec. at 597. 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). 
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. 5 1 (2001). 
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 enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd. 345 F.3d 683. 
Page 7 
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.