dismissed EB-1C Case: Electronics

IdmtiQing data deleted to 
prevent clear1 y unwa~ented 
inva~ioil of p;rsoncl pr;vacy 
IPrn'ILIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529-2090 
MAIL STOP 2090 
U. S. Citizenship 
and Immigration 
Services 
4 
Office: NEBRASKA SERVICE CENTER 
 Date: DEC 1 g 2008 
LIN 07 021 52652 
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. $ 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 8 103.5(a)(l)(i). 
Administrative Appeals Office 
LIN 07 021 52652 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, a Florida corporation, claims to be an "electronics store" and to be a subsidiary of the 
beneficiary's foreign employer located in Peru. 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 denied the petition concluding that the petitioner failed to establish that it would employ the 
beneficiary in a ma'nagerial or executive capacity. 
On appeal, counsel disputes the director's findings, asserts that the beneficiary will primarily perform 
qualifying duties in the United States, and submits a brief and additional evidence. 
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 finn, 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 
1 
According to Florida state corporate records, the petitioner's corporate status in Florida was "administratively 
dissolved" on September 14, 2007. Therefore, since the corporation may not carry on any business except 
that necessary to wind up and liquidate its affairs, and the petitioner has not taken steps under Florida law to 
seek reinstatement, the company can no longer be considered a legal entity in the United States. See Fla. Stat. 
607.1421 (2006). Therefore, if the appeal were not being dismissed for the reasons set forth herein, this 
would call into question the petitioner's continued eligibility for the benefit sought. 
LIN 07 021 52652 
Page 3 
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. 
Title 8 C.F.R. 8 204.5(j)(3) explains that a petition filed for a multinational executive or manager under 
section 203(b)(l)(C) must be accompanied by a statement from an authorized official of the "petitioning 
United States employer" which demonstrates that: 
(A) 
 If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a fm or corporation or other legal 
entity; or 
(B) 
 If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) 
 The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the fm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) 
 The prospective United States employer has been doing business for at least one year. 
The primary issue in this proceeding is whether the petitioner provided sufficient evidence to establish that it 
will employ the beneficiary in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
Page 4 
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. 4 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. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 101 (a)(44)(B) of 
the Act, and indicates in the response to the Request for Evidence that the beneficiary will perform both 
managerial and executive duties. A petitioner may not claim that a beneficiary will be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed 
representing 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 the statutory definition for 
manager. 
The petitioner describes the beneficiary's duties as "president" of the alleged two-location electronics business 
in a letter dated October 2,2006 as follows: 
(25%) Plan, organize, manage, direct, control, and coordinate the daily operation of the 
organization. He is responsible for constantly reviewing the operation making 
changes if necessary and implementing new procedures. 
(20%) He ensures the effectiveness of financial programs; oversee[s] financial and 
LIN 07 021 52652 
Page 5 
administrative management issues, identification of problems, and direct 
implementation of solutions. He directs the establishment of internal financial 
controls and ensures the financiaUaudit operation and reporting requirements are in 
compliance with applicable federal and state laws, policies, standards, regulations, 
and generally accepted accounting principles and practices[.] 
(1 5%) Negotiation of contracts with vendors. 
(15%) Directing and coordinating the day-to-day activities of the subordinate managers and 
supervisors; [rlecruiting and hiring of staff, promotion of firing when necessary. 
(1 0%) Maintain regular communication with the foreign parent company. 
(15%) Research and investigation of other prospective markets for expansion and develop 
marketing strategy accordingly. 
The petitioner indicates in the Fonn 1-129 that it currently employs four workers. Consistent with this 
averment, the petitioner submitted an organizational chart for the United States operation. The chart shows 
the beneficiary at the top of the organization directly supervising two "store managers." One of the store 
managers is, in turn, portrayed as supervising a single "sales associate." The remaining positions listed on the 
organizational chart appear to be vacant. 
Finally, the petitioner described the duties of its three additional workers as follows: 
Store ManagerISanford Store. . Responsibilities include general 
management of the Sanford location, being primary [sic] in charge of planning, organizing, 
and managing the assigned administrative, operational, and customer service activities 
designated by executive personnel. monitors and evaluates performance to ensure 
compliance with goals and policies. Also, assists with all the accounting operations and 
maintenance of appropriate documentation and recordkeeping. 
Store ManagerIDeltona Store. Store. 
 Responsibilities include general 
management of the Deltona location being primary [sic] in charge of planning, organizing, 
and managing the assigned 
 and customer service activities 
designated by executive personnel 
 monitors and evaluates performance to 
ensure compliance with goals and policies. Also, assists with all the accounting operations 
and maintenance of appropriate documentation and recordkeeping. 
Sales Associates, 
 Responsible for customer service at the Deltona 
location. Her responsibilities include retail sales, service contracts, general information and 
advice and general store duties including any errands needed, help stocking, main cashier, 
answer any phone calls, etc. 
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Page 6 
On July 30, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's proposed duties, complete position descriptions for each of the 
beneficiary's subordinate workers, and copies of work schedules pertaining to the petitioner's retail locations. 
In response, the petitioner submitted a letter dated September 4, 2007 in which it further described the 
beneficiary's duties as follows: 
Ensure compliance with all applicable laws: licenses, permits, regulations, 
employment, etc. 
Oversee expansions, moves and major projects, working with Store Managers. 
Approve Store Managers' purchase, lease and service contracts. 
Ensure development of company maintenance and security programs. 
Ensure adequate insurance for all company operations. 
Work with area managers to ensure proper activities and programs are being carried 
out. 
Ensure regular financial reports and analysis. 
Approve capital expenditures for expenditures over $200. 
Develop proposals and negotiate contracts as needed. 
Monitor deviations from budget, take corrective action. 
Review store and department financial performance reports with Store Managers, and 
plan corrective action as needed. 
Ensure margin control and take corrective actions if needed to stay within budget. 
Develop annual business plan with capital, operating and cash budgets. 
Investigate new business opportunities[.] 
Set objectives for Store Managers for store and department sales, margin, turns and 
labor costs. 
Coordinate Operational Management Team meetings. 
Diagnose, develop and evaluate the performance of all business employees, including 
other store managers[.] 
The petitioner also further described the staffing of the United States operation, the duties of the beneficiary's 
subordinate staff, and the size of the enterprise. The petitioner describes six subordinate staff members in the 
September 4, 2007 letter, excluding the beneficiary, working at three locations, even though the petitioner 
claims in the initial petition to employ only three subordinate workers at two locations. While not clarified by 
the petitioner, it appears that these three additional workers were hired after the filing of the initial petition. 
Regardless, the job descriptions for the sales associate and one of the store managers are materially identical 
to those descriptions submitted with the initial petition. The job description for the other store manager,= 
differs significantly from the earlier description. 
 ~lthou~h was originally 
described as a "store manager," she is described in the September 4, 2007 letter as an "administrative 
assistant" and is ascribed basic administrative and clerical duties. 
Finallv. the oetitioner submitted samale work schedules for its various locations. These schedules indicate. 
Page 7 
staffing one of the locations at different times, while the beneficiary and 
 work simultaneously 
at a second location. 
On January 7, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
Upon review, counsel's assertions are not persuasive. 
In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5Cj)(5). 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). A petitioner cannot claim that some of 
the duties of the position entail executive responsibilities, while other duties are managerial. Again, a 
petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager~' and rely on 
partial sections of the two statutory definitions. 
As a threshold issue, it is noted that employees hired, and locations opened, after the filing of the initial 
petition may not be considered in determining whether the petitioner has established that the beneficiary will 
be employed in a primarily managerial or executive capacity in the United States. A visa petition may not be 
approved based on speculation of hture eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). A petitioner may not make, material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 
176 (Assoc. Comm. 1998). At the time the instant petition was filed, the petitioner claimed to employ four 
workers, including the beneficiary, in the operation of two locations. Accordingly, the petitioner's claim in its 
response to the director's Request for Evidence to have employed three additional workers after the filing of 
the instant petition, and its attempt to ascribe to its workers new job titles and duties, will not be considered 
by the AAO. Likewise, the petitioner's claim to have opened a third location may not be considered. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will devote most of his time to 
directing the "daily operation of the organization;" overseeing financial and administrative issues; directing 
internal financial controls, audits, and reporting; negotiating contracts; and researching and developing 
marketing and expansion strategies. However, the petitioner does not explain what, exactly, the beneficiary 
will do to direct "daily operations" other than to act as a fust-line supervisor of three subordinate workers. 
Furthermore, the petitioner has not established that his duties pertaining to finance, auditing, reporting, 
contract negotiating, and market research are qualifling duties given that the petitioner does not appear to 
employ subordinate staff members dedicated to relieving the beneficiary of performing the non-qualifying 
tasks inherent to these duties. The fact that the petitioner has given the beneficiary a managerial or executive 
LIN 07 021 52652 
Page 8 
title and has prepared a vague job description which includes inflated job duties does not establish that the 
beneficiary will actually perform managerial or executive duties. 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. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), ard, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in his operation of the business. As noted above, the petitioner asserts that the beneficiary 
will "manage" the petitioner's business operations through three subordinate workers. However, the record 
does not establish that the beneficiary will be relieved of the need to perform many of the other non- 
qualifying tasks inherent to his ascribed duties by a subordinate staff. Accordingly, it appears more likely 
than not that the beneficiary will primarily perform non-qualifying first-line supervisory, administrative, or 
operational tasks in his administration of the business. 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 
Internatiolzal, 19 I&N Dec. 593, 604 (Comm. 1988). A managerial employee must have authority over day- 
to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees 
are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N 
Dec. at 604. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise two "store managers," one of which will 
supervise a "sales associate." However, it has not been established that either of these store managers is truly 
a supervisory or managerial worker. One of the store managers does not supervise a subordinate staff. The 
other store manager, while claimed to supervise a "sales associate," is not described as having any supervisory 
or managerial authority over this worker. For example, the work schedule shows the "sales associate" and the 
"store manager" splitting responsibility for staffing a store location. Accordingly, it appears that both the 
"sales associate" and the "store manager" are more likely than not performing the same job duties, i.e., the 
tasks necessary to the provision of a service or the production of a product. An employee will not be 
considered to be a supervisor simply because of a job title, because he or she is arbitrarily placed in a position 
superior to other employees on an organizational chart, or because he or she supervises daily work activities 
and assignments. Rather, the employee must be shown to possess some significant degree of control or 
authority over the employment of subordinates. Therefore, it cannot be concluded that any of these 
subordinate workers is truly a managerial or supervisory employee. Finally, as the petitioner failed to 
establish the skills and education required to perform the duties of the subordinate positions, the petitioner has 
Page 9 
not established that the beneficiary will manage professional employees.2 Accordingly, the petitioner has not 
established that the beneficiary will be employed primarily in a managerial capacity.3 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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 101(a)(44)(B) of the Act. 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 discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
2 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10 1 (a)(32) of the Act, 8 U.S.C. 4 1 101 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
3 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary will manage an essential function, the petitioner must Msh a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties that will be attributed to managing the essential fimction. See 8 C.F.R. §§ 8 C.F.R. 5 
204.5(')(2) and (5). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate 
that the beneficiary will manage the function rather than perform the tasks related to the function. In this 
matter, the petitioner has not provided evidence that the beneficiary will manage an essential function. The 
petitioner's vague job description fails to document that the beneficiary's duties will be primarily managerial. 
Also, as explained above, the record indicates that the beneficiary will primarily be a first-line supervisor of 
non-professional employees and will perform non-qualifying tasks. Absent a clear and credible breakdown of 
the time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his 
duties will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a 
function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
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Page 10 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. As explained above, it appears 
instead that the beneficiary will be primarily employed as a first-line supervisor and will perform the tasks 
necessary to produce a product or to provide a service. Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that 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 13 13, 13 16 (gth 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 curiarn); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that the petitioner "is the same 
employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas." 8 C.F.R. § 204.5(j)(3)(C). 
A "subsidiary" is defined at 8 C.F.R. 8 204.5(j)(2) as: 
[A] fm, 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. 
Likewise, an "affiliate" is defined in pertinent part at 8 C.F.R. 5 204.5Q)(2) as: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; [or] 
(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[.] 
"Doing business" is defined in part as "the regular, systematic, and continuous provision of goods and/or 
services." Id. 
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Page 11 
The regulations and case law confi 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 Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Cornm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 
593. In the context of this petition, ownership refers to the direct or indirect legal right of possession of the 
assets of an entity with hll 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 at 595. 
In this matter, the petitioner claims to be 100% owned by the foreign employer, a Peruvian company. In 
support, the petitioner submitted organizational documents, including a stock certificate representing the 
issuance of 1,000 shares of stock to the foreign employer. However, the record contains serious 
inconsistencies which undermine the petitioner's claim to be owned and controlled by the foreign employer. 
For example, the petitioner's 2005 and 2006 IRS Forms 1120, U.S. Corporation Income Tax Returns, indicate 
in Schedules K that no entity owned, directly or indirectly, 50% or more of the petitioner's stock. The returns 
also indicate that no foreign companies owned 25% or more of the petitioner's stock. Both of these averments 
directly contradict the petitioner's claim to be 100% owned by a Peruvian company. 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 sufice 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). Doubt cast on 
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Id. at 591. 
Furthermore, the record contains significant inconsistencies which undermine the petitioner's claim to be 
doing business in the United States. While the petitioner submitted evidence of the conduct of business 
activities at the locations listed in the petition, the petitioner also submitted copies of the leases for these 
locations. Upon review, it appears that the petitioner is not the lessee for any of these locations. To the 
at the locations are the beneficiary (identified as a "sole proprietor"), the beneficiary and 
and . As the petitioner is not the lessee for any of its claimed business 
locations, the record is not persuasive in establishing that the petitioner is actually doing business at any of 
these locations. Instead, it appears more likely than not that these businesses are being conducted by the 
individuals who are listed as the lessees. Once again, 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. Id. at 59 1-92. 
Accordingly, as the petitioner has failed to establish that it and the foreign employer are qualifyrng 
organizations, the petition may not be approved for this additional reason. 
An application or petition that fails to comply with the techcal 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), afld, 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 
LIN 07 021 52652 
Page 12 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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., 229 F. Supp. 2d at 1043. 
As a final note, USCIS records indicate that the beneficiary has previously been approved for L-1 
employment with the instant petitioner. However, 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 USCIS 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. $ 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 nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which pennits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. CJ: $8 204 and 214 of the Act, 8 U.S.C. $8 1154 and 1184; see also 4 316 of the 
Act, 8 U.S.C. $ 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and USCIS normally accords the petitions a less 
substantial review. See 8 C.F.R. $ 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to 
extend an L-1A petition's validity). Because USCIS spends less time reviewing Form 1-129 nonimmigrant 
petitions than Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. 
Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that USCIS approves some petitions in 
error). 
Moreover, 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 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-1 petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; 
Fedin Brothers Co. Ltd. v. Sava, 724 I?. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported and 
contradictory 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. 593, 597 (Comm. 1988). It would be absurd to 
Page 13 
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). 
In addition, 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (200 1). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.