dismissed EB-1C Case: Distribution

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAY 0 6 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(b)(1)(C) 
IN 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. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 corporation that seeks to employ the beneficiary as its president/chief executive 
officer. 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 based on two independent findings. First, the director found that the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity; 
second, the director found that the petitioner failed to establish that it has the ability to pay the beneficiary's 
proffered wage. 
On appeal, counsel disputes each of the grounds cited as a basis for the denial, claiming that the denial was 
erroneous. In reviewing the record, the AAO finds that the petitioner has not failed to establish its ability to 
pay the beneficiary's proffered wage and therefore withdraws this issue as a basis for denial. Accordingly, the 
AAO's decision will focus on the beneficiary's proposed employment and whether the petitioner has provided 
sufficient evidence to establish that the beneficiary would be employed in a qualifying managerial or 
executive capacity. 
Section 203(b) ofthe 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)(1 )(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
. ). 
The primary 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 qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 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, 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-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, counsel submitted a letter dated June 8, 2009 in which he stated that the 
petitioning entity had one employee---a full-time secretary-at the time of filing. Counsel stated that the 
beneficiary would hire additional employees in the future to meet the needs of the petitioner's operations. 
Counsel stated that in the proposed position the beneficiary would establish new goals and policies, oversee 
.. 
Page 4 
daily operations, make marketing decisions, hire and fire personnel, and prepare quarterly reports which 
would be submitted to the parent entity in Honduras. 
On July 9, 2009, the director issued a request for additional evidence (RFE), informing the petitioner that the 
record was not supplemented with sufficient documentation to establish that the beneficiary would be 
employed in a qualifying managerial or executive capacity. 
In response, counsel submitted a letter dated August 8, 2009 stating that the petitioner has contracted a 
company that acts as the petitioner's exclusive distributor in charge of warehousing and shipping. Counsel 
explained that the petitioning entity is not responsible either for shipping or receiving merchandise and that as 
a result of its business arrangement with an independent contractor, the petitioner does not require a large 
work force. The petitioner's supporting documents included quarterly tax returns and quarterly reports for the 
first two quarters of 2009. It is noted that both quarterly reports named the beneficiary and one other 
individual as the petitioner's two employees. The petitioner also provided a letter dated August 3, 2009 from 
the president the petitioner's sole distributor, stating that the petitioner is 
responsible for processing all orders. Copies of the petitioner's sublease and distribution agreements were 
also provided establishing the relationship between the petitioner and its distributor. 
In a decision dated August 21, 2009 the director denied the petition. The director reviewed the record, 
referring to a number of the documents that the petitioner submitted in support of the original petition and in 
response to the RFE and concluded, in part, that the petitioner failed to establish that the beneficiary's 
proposed position is within a managerial or executive capacity. 
On appeal, counsel submits an appellate brief in which he restates the definition of executive capacity and 
asserts that the definition does not impose a staffing requirement on the petitioning entity. Counsel asserts 
that a beneficiary can be an executive regardless of whether the petitioner employs staff other than the 
beneficiary. Counsel goes on to state that the beneficiary in the present matter is the key decision maker 
within the petitioning entity and points out that two L-lnonimmigrant petitions had been previously approved 
on behalf of the same beneficiary. Counsel's assertions, however, do not affirmatively establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). The AAO will also consider the 
description of the proposed employment 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 day-to-day tasks and 
thus precludes the AAO from being able to determine the employment capacity of the proposed position. By 
failing to provide this essential information, the petitioner failed to comply with 8 C.F.R. § 204.50)(5), which 
expressly instructs the petitioner to provide a statement that clearly described the job duties the beneficiary 
would perform in his/her proposed employment. Published case law supports the emphasis placed on a 
detailed job description, finding that the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Although counsel has repeatedly stated that the beneficiary is the petitioner's key decision maker, a statement 
from the petitioner's counsel is insufficient in establishing that the beneficiary would be employed in a 
Page 5 
qualifying capacity. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Furthermore, although counsel is correct in pointing out that the 
petitioner has no legal obligation to maintain a minimum number of employees within its organizational 
hierarchy, the evidentiary burden is on the petitioner to establish that its organizational hierarchy, whether it is 
comprised of a single employee or numerous employees, is sufficient to relieve the beneficiary from having to 
primarily perform non-qualifying tasks. Thus, in the case of a petitioner with a limited support staff, a 
detailed job description is particularly crucial, as it may help clarify how the petitioner can function on a daily 
basis without relying on the beneficiary to perform the majority of the daily operational tasks. 
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 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 
International, 19 I&N Dec. 593, 604 (Comm. 1988). Here, the AAO cannot make a determination as to the 
beneficiary's employment capacity, as the record lacks the information that would formulate the basis for such 
a conclusion. 
With regard to counsel's reference to the petitioner's previously approved L-l employment of the beneficiary, 
the AAO notes that each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof. Therefore, each petition must stand on its own individual merits. 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. The prior 
nonimmigrant approvals do not preclude USCIS from denying an extension petition. See e.g. Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Similarly, 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 1-140 immigrant petitions after approving previously filed 
nonimmigrant 1-129 L-l petitions. 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. 
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 International, 19 I&N Dec. at 597. 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 (E.D. La.), ajj'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Page 6 
In summary, the above analysis indicates that the information that is necessary to make a favorable 
conclusion has not been provided. Therefore, the AAO finds that the petitioner has failed to establish that the 
beneficiary would be employed in a qualifying managerial or executive capacity. 
Furthermore, while not addressed in the director's decision, the AAO finds that the petitioner failed to provide 
sufficient information to establish that it meets the provisions of 8 C.F.R. § 204.5(j)(3)(i)(B), which states that 
the petitioner must establish that the beneficiary was employed abroad in a qualifying managerial or executive 
position for at least one out of the three years prior to his entry to the United States as a nonimmigrant to work 
for the same employer. With regard to the beneficiary'S employment abroad, the AAO finds that the 
petitioner failed to provide adequate information to establish that the beneficiary primarily performed tasks of 
a qualifying managerial or executive nature. 
The AAO also finds that the record lacks sufficient documentation to establish that the petitioner meets the 
provisions specified at 8 C.F.R. § 204.5(j)(3)(i)(C), which states that the petitioner must establish that it 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)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C); see also 
8 C.F.R. § 204.5(j)(2) (providing definitions ofthe terms "affiliate" and "subsidiary"). 
In the present matter, while the petitioner maintains the claim that it is the subsidiary company of the foreign 
entity where the beneficiary was previously employed, no evidence was provided to corroborate this claim. It 
is noted that 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)). 
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 Solfane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
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. § 136l. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.