dismissed EB-1C Case: Electronics Refurbishment

"identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac~ 
PUBLlCCOPY 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
TEXAS SERVICE CENTER 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: 
DEC 0 7 ZOlJ 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(I)(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. 
The fee for a Form I-290B is $630. Any appeal or motion filed on or after November 23, 2010 must be filed 
with the $630 fee. Please be aware that 8 C.F.R. § 103.5(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 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
petitioner subsequently filed a motion to reopen and reconsider, which the director dismissed. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Georgia corporation that seeks to employ the beneficiary as its president and chief 
executive officer. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1 )(C), as a multinational executive or manager. 
In a decision dated December 20, 2006, the director denied the petition based on two independent grounds of 
ineligibility: I) the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity; and 2) the petitioner failed to establish that it has a qualifying relationship with the 
beneficiary's foreign employer. Stemming from the second finding, the director observed that the record 
lacks evidence to establish that the petitioner is a multinational entity. 
In the June 4, 2008 decision, which was issued in response to the petitioner's motion to reopen and reconsider, 
the director noted that information obtained from the Texas Comptroller of Public Accounts shows the 
petitioner as an entity not in good standing. The director observed that two companies with the same name 
were registered in the State of Texas and that neither entity was shown to be in good standing. The director 
affirmed his prior findings with regard to both grounds of ineligibility, stating that the petitioner did not 
provide evidence of a qualifying relationship or establish that it would employ the beneficiary within a 
qualifying managerial or executive capacity. 
On appeal, counsel asserts that not being in good standing with the comptroller's office does not affect the 
company's corporate registration or its authority to conduct business in the State of Texas. Counsel states that 
the U.S. and foreign entities have a qualifying relationship by virtue of being owned and controlled by the 
same individual. With regard to the beneficiary's employment capacity, counsel asserts that the petitioner's 
Georgia location, where the petitioner is headquartered, had six employees at the time the Form 1-140 was 
filed. Counsel claims that the petitioner has consolidated its operations to the Texas location where it has 
eleven employees. 
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 
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. 
Page 3 
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 the AAO will address in this proceeding is whether the petitioner submitted sufficient evidence 
to establish that it would employ the beneficiary in the United States in a managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § I I o I (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization 10 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 IOI(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; 
Page 4 
(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 foreign entity that is claimed to be the petitioner's affiliate submitted a letter 
dated October 6, 2004, stating that at the time the petition was filed the petitioner consisted of four employees 
and several independent contractors. The letter indicated that the beneficiary has the authority to determine 
which contractors to hire and to direct where and how they will carry out their tasks. The letter also states 
that the beneficiary sets pricing based on input from supervisors and technicians and sets sales goals. The 
following statements were offered to describe the beneficiary'S proposed employment with the U.S. entity: 
[The beneficiary's] primary responsibility is to expand the operation of this new 
establishment. He will operate and direct the management of this new company. Specific 
duties include the following: marketing the company's products, surveys the market for 
potential customers, establishes contacts and develops programs to seek their future business, 
attend[s] meetings with overseas customers, negotiates and enters into and executes contracts 
for sale of refurbished electronic items, identifies suitable suppliers of broken or defective 
electronic items ... and negotiates and enters into contracts with them, supervises the 
subordinates in the company who are managers, supervisors, and technicians whose job 
duties are to coordinate with the customers and obtain their approval for the purchase of the 
refurbished electronic items, supervises the transportation manager in charge of receiving 
broken or defective electronic items and shipping of finished merchandise, helps to organize 
the participation in trade fairs, supervis[es] the managers who oversee the trade fair activity, 
supervis[es] the marketing activity of sales personnel and supervis[es] the managers of sales 
personnel, works in establishing billing systems, including invoicing to customers, 
establishing systems for recording receipts for customers, supervising bookkeeping systems 
of recording receipts from customers and collection of payments from customers, supervises 
traffic managers in their shipping of merchandise activities ... , controlling customer's [sic] 
special needs and requests, ... and supervising activities of subcontractors. 
On August 17, 2006, the director issued a request for evidence (RFE) instructing the petitioner to provide a 
list of the beneficiary'S proposed job duties accompanied by an estimate of time that would be allocated to 
each duty. The petitioner was also asked to provide job descriptions for the beneficiary's direct subordinates 
and to explain who provides the services of the organization. Additionally, the director asked the petitioner 
to illustrate its staffing and organizational hierarchy in an organizational chart, naming each employee and 
specifying his/her position title. 
In response, counsel provided a letter dated November 16, 2006 in which he referred to a letter dated 
November 13, 2006 provided by a representative of the beneficiary'S foreign employer. Counsel stated that 
the beneficiary'S job duties are managerial and executive in nature. In the foreign entity's response letter, key 
portions of the beneficiary's previously submitted job description were restated with more specific 
information provided about the beneficiary's subordinates. Namely, the letter stated that the beneficiary 
currently supervises a sales manager, who oversees the sales of goods and sales events and promotions, an 
inventory control manager, who accepts and accounts for incoming and outgoing inventory, and a technical 
Page 5 
support manager, who oversees the quality of incoming goods and handles customer complaints. The 
petitioner also provided a separate employee list containing the dates of employment of all current employees. 
It is noted that of the three managerial employees described above, none had been employed by the petitioner 
in October 2004 when the petition was filed. 
On December 20, 2006, the director denied the petition, concluding that the petitioner failed to establish that 
the beneficiary would primarily perform managerial- or executive-level tasks. 
Although the petitioner filed a motion in response to the director's decision, counsel did not address the 
adverse finding concerning the beneficiary's proposed position with the U.S. entity. Accordingly, the director 
reaffirmed the original decision, denying the petition based in part on the petitioner's failure to establish that 
the beneficiary would be employed in a qualifYing managerial or executive capacity. In the decision dated 
June 4, 2008, the director noted that the petitioner cannot rely on the number of employees it has or on the 
fact that it conducts business in more than one state in order to establish that the beneficiary's proposed 
employment would primarily require the performance of qualifying tasks. 
On appeal, counsel asserts that the beneficiary has been entrusted with the authority to oversee the entire U.S. 
operation, which includes overseeing three managerial employees one of whom has the educational 
credentials to be deemed a professional. 
Counsel's assertions, however, are not persuasive in overcoming the initial ground cited as a basis for denial. 
First, the AAO notes that without documentary evidence to support the claim, the assertions of counsel will 
not satisfY the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). As stated above, the record lacks evidence to 
establish that the managerial employees mentioned by counsel were employed by the petitioner at the time of 
filing. Rather, based on information that was provided by the petitioner, the petitioner did not hire any 
employees until December 2004. The record does not establish exactly whom the petitioner actually 
employed at the time of filing. It is noted that a petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Establishing that certain managerial 
positions were filled after the petition was filed is not sufficient to establish that the petitioner was adequately 
staffed to relieve the beneficiary from having to primarily perform non-qualifYing tasks at the time of filing. 
Second, in 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). In the present matter, the job description 
that was initially submitted by the foreign entity in support of the petitioner's Form 1-140 indicates that the 
petitioner intended to allocate a considerable portion of the beneficiary's time to non-qualifYing operational 
and administrative tasks. The support letter expressly stated that the beneficiary would market the company's 
products, seek out potential customers, engage in contract negotiation, seek out and negotiate contracts with 
suppliers, and establish a system for billing clients, all of which are non-qualifYing operational tasks that were 
necessary to produce products that the petitioner would then use to sell to clients as its main revenue stream. 
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 
Page 6 
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). 
Additionally, while the petitioner's job description indicates that the petitioner would task the beneficiary with 
managing employees, the petitioner has failed to establish whom it employed at the time of filing. The record 
does not corroborate the job description, which indicates that the petitioner was adequately staffed with a 
subordinate managerial staff for the beneficiary to manage. Although the initial support letter indicated that 
the petitioner had four employees and several independent contractors at the time of filing, the record does not 
contain documentation to support this claim. 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)). While the petitioner's staffing make-up is clearly not the sole factor that the AAO considers in 
determining whether the beneficiary would be employed within a qualifying capacity, in reviewing the 
relevance of the number of employees a petitioner has, federal courts have generally agreed that U.S. 
Citizenship and Immigration Services (USCIS) "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family. Inc. v. Us. 
Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) 
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D. D.C. 2003). 
Thus, after considering a job description that is replete with non-qualifying tasks in tandem with an 
organizational hierarchy that appears to have been lacking sufficient support personnel at the time of filing, 
the AAO cannot conclude that the beneficiary's proposed employment would more likely than not be 
primarily comprised of managerial- or executive-level tasks. To the contrary, the record appears to suggest 
that the beneficiary would perform all tasks necessary, regardless of whether or not they are qualifying, in 
order to ensure that the petitioner continues to function successfully in its daily operation. 
Additionally, the AAO notes the petitioner's confusing references to the beneficiary's managerial and 
executive employment, thus indicating that the two statutory definitions are interchangeable. The petitioner 
does not clarify whether it is claiming that the beneficiary is to be primarily engaged in managerial duties 
under section 101(a)(44)(A) of the Act, or primarily executive duties under section 10 I (a)(44)(B) of the Act. 
A beneficiary may not be employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. If the petitioner chooses to represent the beneficiary as both an executive and a 
manager, it must establish that the beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and each of the four criteria set forth in the statutory definition for manager. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section IOI(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
Page 7 
discretionary decision making" and receive only "general supervISIOn or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. Here, while the beneficiary may 
have discretionary authority over the petitioner's business operation, the petitioner has not established how the 
beneficiary would be relieved of the day-to-day operations of the petitioner's business, such that he could 
focus the majority of his time on executive duties. 
On review, the record as presently constituted is not persuasive in demonstrating that the petitioner was ready 
and able to employ the beneficiary in a primarily managerial or executive capacity. As discussed above, the 
petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate staff of 
professional, managerial, or supervisory personnel or that he would otherwise be relieved from performing 
nonqualifying duties. Despite the petitioner's claim that the beneficiary would use the work of subcontractors 
for certain operational tasks, such claim has not been corroborated with any documentary evidence. See 
Matter of Soffici, 22 I&N Dec. at 165. Regardless of the petitioner's current stage of development, the record 
lacks evidence to establish that at the time of filing the petitioner had reached a level of organizational 
complexity wherein the hiring/firing of personnel, discretionary decision-making, and setting company goals 
and policies would have constituted significant components of the beneficiary's daily job duties. Nor does the 
record demonstrate that the beneficiary would primarily manage an essential function of the organization. 
Based on the evidence furnished, it cannot be found that the beneficiary has been or will be employed 
primarily in a qualifying managerial or executive capacity. For this reason, the petition may not be approved. 
The other issue in this proceeding is whether the petitioner subm itted sufficient evidence to establ ish that it 
has a qualifying relationship with the beneficiary's foreign employer and that it is therefore a multinational 
entity. 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 that the two entities are related as a "parent and subsidiary" or as "affiliates." 
See generally § 203(b)(1)(C) of the Act, 8 U.S.C. § I I 53(b)(I)(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 
Page 8 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half ofthe entity, but in fact controls the entity. 
In the present matter, the letter dated October 6, 2004 referred to the 
beneficiary's foreign as the parent entity. Although the support 
letter indicated that corporation documents, a stock certificate, organization charts, and other documents were 
being submitted to establish the alleged qualifying relationship between_ and the petitioning entity, the 
record does not contain such documentation. With regard to the foreign entity, the supporting documents 
include the foreign entity's registration certificate, its business license, tax documents, certificates establishing 
the foreign entity's membership in the chamber of commerce in Pakistan, and payroll documents showing the 
beneficiary as an employee of the foreign entity. With regard to the petitioning entity, the supporting 
documents include the petitioner's certificate of incorporation, the petitioner's Occupation Tax Certificate 
showing that it was authorized to do business as and the petitioner's Assumed Name 
Certificate showing that as of September 2, 2004, the petitioner was authorized to do business under the name 
••••••••••••••• It is noted that none of these documents established who owned either 
the foreign or U.S. entity; nor is there any indication based on these documents that the two entities had a 
qualifying relationship as claimed. 
Accordingly, this deficiency was addressed in the director's August 17, 2006 RFE, which instructed the 
petitioner to provide documentation establishing the ownership and control of both entities. The petitioner 
was told that the evidence could be in the form of stock certificates, a stock register, or annual reports 
establishing the percentage of ownership held by the claimed parent entity. 
In a response, the petitioner resubmitted its certificate of incorporation, which shows that the petitioner was 
originally incorporated in the State of Georgia in 2002. The petitioner also provided its articles of 
incorporation, dated September 18, 2002, in which Article IX indicated and 
•••••••• each owned 50% of the U.S. entity. No evidence was submitted to establish who owned 
and controlled the foreign entity. 
Accordingly, in the December 20, 2006 decision, the director concluded that the petitioner provided no 
evidence, including the requested stock certificate or stock register, to establish that the petitioner is foreign­
owned as claimed or that the petitioner and the foreign employer had a qualifying relationship. On the basis 
of that conclusion, the director also found that the petitioner failed to establish itself as a multinational entity. 
It is noted that failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. § 103.2(b)(14). 
On motion, counsel explained the petitioner's transition from operating its business in the State of Georgia to 
its most recent operation in the State of Texas. Counsel provides a confusing explanation indicating that the 
assets of the Georgia corporation were transferred to Texas such that the Texas corporation is fully owned by 
the Counsel made no mention of any foreign ownership in the 
petitioning entity. 
Additionally, in support of the appeal, the petitioner provided a stock certificate dated OClt()l:J<~ 
in the State of Georgia indicating wholly owns 
Contrary to subm itted documents, which merely indicate that the originally created 
a Georgia corporation, was authorized to do business in Texas, the stock 
Page 9 
certificate submitted on appeal suggests that the petitioner is a 
seemingly created in the State of Texas and calls . The petitioner 
provided no evidence to establish that either the Georgia or Texas entity is foreign owned. 
Accordingly, the director denied the petitioner's motion, finding that the petitioner failed to provide 
documentary evidence establishing that it has a qualifYing relationship with a foreign entity. The director 
observed that records with the Texas comptroller's office indicate that the petitioner is a corporation that is not 
in good standing. 
On appeal, counsel addresses the issue of the petitioner's good standing as a corporate entity in the State of 
Texas and asserts that is the sole owner of the foreign entity and controls the U.S. 
entity, thus making the foreign and U.S. entities affiliates. However, as noted earlier in this decision, the 
assertions of counsel alone are not probative and must be supported by documentary evidence. See Matter of 
Obaigbena, 19 I&N Dec. at 534. The record in the present matter lacks the requisite evidence to corroborate 
counsel's claims. In fact, counsel's current claim, which indicates that the beneficiary's foreign employer and 
the U.S. petitioner are affiliates, is inconsistent with the petitioner's earlier claim, which indicates that the 
petitioner is the subsidiary of the foreign parent entity. 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 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 petitioner has failed to provide evidence establishing that it shares common 
ownership and control with the foreign entity that employed the beneficiary abroad. This lack of evidence 
precludes the AAO from finding that the petitioner has a qualifYing relationship with the beneficiary's foreign 
employer. As there is no evidence that the petitioner is affiliated with a foreign entity, the AAO also affirms 
the director's finding that the petitioner is not a multinational entity. See 8 C.F.R. § 204.5(j)(2). 
Additionally, while the director's decision was limited to the issues addressed above, the AAO finds that the 
petitioner's Form 1-140 does not warrant approval based on additional grounds. 
First, the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) 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 into the United States as a nonimmigrant to work for the same employer. In the instant 
matter, the record contains a vague discussion of the beneficiary's general job responsibilities with the foreign 
entity. According to a November 13, 2006 letter signed by the representative of the beneficiary's foreign 
employer, the beneficiary was charged with overseeing the company's marketing and managing the company 
within the scope of the goals and policies set by the company's president. Although the letter indicated that 
Page 10 
the beneficiary had the discretionary authority to make decisions and terminate employees, the beneficiary's 
actual day-to-day job duties were not delineated. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.O.N.Y. 
1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the 
employment. Id. As the petitioner failed to specify what actual tasks the beneficiary performed during his 
employment abroad, the AAO cannot conclude that the beneficiary was employed within a qualifying 
managerial or executive capacity. 
Second, the AAO finds that the petitioner failed to establish that it meets the criteria set forth at 8 C.F.R. 
§ 204.5(j)(3)(i)(O), which states that the petitioner must establish that it has been doing business for at least 
one year prior to filing the Form 1-140. The regulation at 8 C.F.R. § 204.5(j)(2) states that doing business means 
"the regular, systematic, and continuous provision of goods andlor services by a firm, corporation, or other entity 
and does not include the mere presence of an agent or office." Although the record includes tax returns and 
bank records for time periods prior to the filing of the petition, such documents do not show the frequency of 
the petitioner's sales transactions. Although the petitioner claims to run a retail operation, the record is devoid 
of evidence such as sales invoices establishing that the petitioner has been conducting business on a "regular, 
systematic, and continuous" basis. See id. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even ifthe 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.O. Cal. 2001), ajj'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane 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. 
As a final note, service records show the petitioner's previously approved L-l employment of the beneficiary. 
The AAO notes, however, that 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. 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). 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 prior nonimmigrant 1-129 L-I 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 
(O.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.O.N.Y. 1989). 
Furthermore, if the previous nonimm igrant 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). 
Page 11 
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. 
200 I), cert. denied, 122 S.C!. 51 (200 I). 
In summary, 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.