dismissed EB-1C Case: Food And Restaurant

U.S. Department of fIomeland Security 
20 Mass Ave., N W , Rm 3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
I and Immigration 
Services 
, By 
FILE: - Office: VERMONT SERVICE CENTER Date: DEC 1 1 28% 
I_ 
 EAC 05 079 5 1799 
- , 4* 
@#,. 
'IN RE: Petitioner: 
Beneficiary: 
\ 
, 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
I' 
1 
 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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant visa petition to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
fj 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Florida that is 
authorized to engage in the food and restaurant business in the State of New Jersey. The petitioner claims to 
be the subsidiary of the foreign entity, and seeks to employ the beneficiary as its general manager. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
\ 
On appeal, counsel for the petitioner contends that Citizenship and Immigration Services (CIS) incorrectly 
concluded that the beneficiary would not occupy a primarily managerial or executive position in the United 
States company. Counsel submits a brief and additional documentary evidence in support of the appeal. 
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 exkcutive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
The issue in the instant matter is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. fj 1 10 1 (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; 
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(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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, hnctions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional. 
L 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1(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 filed the instant petition on January 20, 2005 noting that the beneficiary would be employed as 
its general manager. In an accompanying letter, dated December 1, 2004, counsel for the petitioner 
referenced the beneficiary's proposed employment as the company's president, during which he would 
supervise three employees who would run "the day-to-day affairs of the petitioning company's business in the 
United States." Counsel stated: 
The beneficiary is responsible for directing and managing the overall administrative and 
financial operations of the petitioning company, including developing and implementing 
marketing, sales and promotion policies, strategies and goals. He is also responsible for 
making policy decisions for the company, hiring and firing employees, conducting 
negotiations with customers, suppliers, vendors and other third parties doing business with 
the company. Further, he is engaged in developing, formulating and implementing plans for 
long-term growth. A copy of the most recent business plan for the [petitioner's] [sltore is 
enclosed as Exhibit J. 
[The beneficiary] is independently responsible for all operational and administrative policy 
decisions concerning the well-being and profitability of the U.S. entity (and the parent 
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company). As a matter of fact, [the 'beneficiary] has been instrumental in successfully 
launching the petitioner's food-related operations within a relatively brief period of time. He 
is also leading the effort to develop complimentary business ventures through the import 
agreement with American0 [a company based in the United Arab Emirates from which the 
petitioner seeks to import mopeds.] 
Counsel further noted the following "executive level responsibilities" held by the beneficiary: 
1. Hiring, training and supervising staff in the United Stat[e]s; 
2. Developing strategic plans for growth and diversification of the business in the United 
States; 
3. Provide financial management and direction to the company; 
4. Ensure compliance with health related codes and regulations regarding proper food 
handling, storage[,] etc[.]; 
5. Hire the professional services of accountants, consultants and lawyers needed. 
Counsel submitted with the petition a copy of the petitioner's business plan describing its operations as a 
"premier grocery, delicatessen and caterer . . . that caters to commuters into New York City and outlining 
boroughs," as well as its plans to rent mopeds as an "affordable and novel alternative to the typical public 
transportation system." 
The director issued a request for evidence on August 3, 2005 directing the petitioner to submit the following 
documentation in support of the beneficiary's employment as a manager or executive: (1) a statement 
describing the management and staffing levels of the United States company, including the number of 
employees supervised and their job duties; (2) copies of Internal Revenue Service (IRS) Forms W-2 and W-3 
issued by the petitioner in 2004, and IRS Form 941 for the first and second quarters of 2005; (3) 
documentation that the beneficiary has hired and trained employees, particularly those rendering professional 
services to the petitioner, as claimed by counsel in his December 1, 2004 letter; (4) a copy of the petitioner's 
"strategic plan for growth and diversification"; and (5) if applicable, documentation of the petitioner's use of 
outside contractors, and the associated job duties. The director also requested an explanation of the number 
of workers employed by the petitioner on the date of filing, noting that the petitioner indicated a staff of five 
on the Form 1-140, yet subsequently claimed to employ three workers. 
Counsel responded in a letter dated October 27, 2005, noting an error on Form 1-140 with respect to the 
petitioner's staffing levels, and stating that on the date of filing, the petitioner employed the beneficiary and 
three subordinate workers. Counsel explained that the job duties performed by the beneficiary in the United 
States company "are mostly managerial and 'supervisory," noting that the company's operations manager and 
assistant manager are responsible for managing its day-to-day operations. With respect to the beneficiary's 
job responsibilities, counsel stated: 
The beneficiary is responsible for setting goals and policies, hiring and firing the managers 
and staff, and training them about the policies and procedures of the company. According to 
the company procedures, the manager and assistant manager attended day long training and 
orientation with the beneficiary before starting their duties. 
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The beneficiary is also responsible for making and implementing plans for further growth and 
expansion. The petitioner's business plan that was submitted with the 1-140 petition was 
developed by the beneficiary. In light of the experience so far, a modified business plan has 
been developed by the beneficiary. A copy of the modified business plan is enclosed as 
Exhibit "G". 
The beneficiary has also been hiring the accountants, lawyers, [and] payroll service providers 
for the company. Enclosed as Exhibit "H" are copies of the retainer agreements with lawyer 
and accountants, their invoices, and checks paid. Recently, the beneficiary has retai[n]ed our 
law firm to represent the petitioner in the purchase of One Stop business and assets. An 
invoice for our services will be generated in due course. 
It is clear that the beneficiary's employment with the petitioner is in an executive capacity, 
and that he supervises the work of other manages and staff members. The beneficiary enjoys 
full discretion in the performance of his duties and reports only to the owner of the foreign 
parent company in the United Arab Emirates. 
Counsel submitted with his letter an organizational chart of the petitioning entity noting the beneficiary's 
position as president-general manager, in which he would supervise the company's operations manager, 
assistant manager, food services provider-cashier, salesperson-cashier, suppliers, and contractors. Counsel 
provided a briefjob description for each position. 
Counsel also submitted the requested IRS Forms W-2 issued by the petitioner in 2004, and its quarterly state 
and federal wage reports. The petitioner's wage report for the quarter ending March 3 1, 2005, the period 
during which the instant petition was filed, listed six workers, five of which were identified on the petitioner's 
organizational chart. The AAO notes these five workers were identified on the quarterly wage report as 
working four weeks during the quarter, while the sixth employee was noted as working nine weeks. 
Conversely, a list of the petitioner's employees, also provided by counsel, contains each employee's date of 
hiring suggesting that all five workers were employed at the time of filing. The information contained on the 
petitioner's March 3 1, 2005 quarterly wage report and its employee list does not comport with counsel's. 
original claims of a four-person staff. As a result, the AAO cannot determine the true staffing levels 
maintained by the petitioner on the filing date. The petitioner is obligated to clarify the inconsistent and 
conflicting testimony by independent and objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Counsel also provided copies of letters dated July and October 2003 confirming the petitioner's use of outside 
corporate counsel and an accountant. 
In a decision dated January 30, 2006, the director concluded that the petitioner had not demonstrated that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director reviewed the evidence presented by the petitioner, and stated that despite the beneeciary's job 
description, the petitioner had not demonstrated that "[it has] grown to a point where the duties of a 
'President', regardless of job title, are primarily managerial or executive in nature." The director specifically 
noted that the petitioner claimed to use contracted workers, yet did not identify any costs paid to outside 
contractors. The director also noted that two of the beneficiary's three subordinate employees "carry 
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'managerial' titles." 
 The director concluded that the beneficiary would not be employed in a primarily 
managerial or executive capacity. Consequently, the director denied the petition. 
Counsel for the petitioner filed an appeal on March 2, 2006, claiming that the director's decision was 
"arbitrary" and contrary to the record. In a subsequently submitted appellate brief, dated March 29, 2006, 
counsel contends that as the president and general manager of the United States entity, the beneficiary would 
be employed in a primarily managerial or executive capacity. Counsel again notes the beneficiary's 
responsibilities of setting goals and policies for the company, and hiring, firing, and training personnel. 
Counsel references the petitioner's current staffing levels, which are comprised of an operations manager, 
accounts manager, and "junior level managers, clerks, and other staff," stating that "[ilt is evident that the 
beneficiary manages the US operations, supervises and controls the work of other supervisory and managerial 
staff, has [the] power to hire and fire them, and exercises full discretion over the day-to-day operations." 
Counsel further contends that CIS ignored the petitioner's original and revised business plans developed by 
the beneficiary, which counsel claims evidences the beneficiary's employment in a primarily managerial or 
executive capacity. Counsel challenges that CIS "attached no significance to the revised business plan 
because it was not dated and appeared to have not yet achieved fruition." Counsel explains that the 
beneficiary had begun to implement the goals outlined in the petitioner's revised business plan, most notably, 
expanding the company's food services operations into New York City. Counsel claims that the director also 
ignored evidence that the beneficiary possesses the authority to hire personnel, and has retained the services 
of "accountants, lawyers, payroll service providers, and other consultants for the company." Counsel states 
that payments made to these outside consultants were reflected as general deductions on the petitioner's tax 
returns, not as labor costs as indicated by the director. 
Counsel states: 
The revised business plan, related correspondence, and the hiring of professionals such as 
accountants and lawyers by the beneficiary are clear proof that the beneficiary acts in an 
executive capacity, directing the management of the US petitioning entity, and establishing 
goals and policies under the general supervision of the foreign owners of the company. The 
petitioner's organizational structure shows that the beneficiary performs primarily managerial 
functions: There is, therefore, no doubt here that the requirements of Section 101(a)(44) [of 
the Act] have been satisfied. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial,or executive capacity. 
The record contains unresolved inconsistencies as to the true position and capBcity in which the beneficiary 
would be employed. Despite counsel's repeated claims of the beneficiary's employment in a primarily 
executive position, he contends on appeal that the beneficiary's job duties are "managerial and supervisory," 
and subsequently states that "the beneficiary performs primarily managerial functions." The title of general 
manager initially assigned to the beneficiary on the Form 1-140 also raises questions as to the credibility of 
the claims that the beneficiary would occupy a primarily executive position. The beneficiary's additional role 
as president, subsequently noted by counsel in his appended December 21, 2004 letter, fails to clarify the 
position to be held by the beneficiary. The AAO notes that a petitioner may not claim to employ the 
beneficiary as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If 
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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 the 
statutory definition for manager. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.5@(5). 
The job descriptions offered by the petitioner are not sufficient to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity. In support of the claim that the beneficiary would 
be employed in a primarily executive capacity, the petitioner provided vague representations that the 
beneficiary would direct and manage the company's "overall administrative and financial operations," develop 
marketing, sales, and promotional strategies, make "policy decisions", hire and fire employees, conduct 
negotiations with third parties, develop plans for long-term growth, and set goals. The limited claims made 
by the petitioner do not detail the specific managerial or executive job duties to be performed by the 
beneficiary in his role as president-general manager of the petitioning entity. Reciting the beneficiary's vague 
job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question in this 
case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
agd, 905 F.2d 41 (2d. Cir. 1990). 
Counsel's claims on appeal are equally vague, again stating that the beneficiary would develop the company's 
goals and policies and hire, fire, and train employees. Counsel also emphasizes the beneficiary's role in 
creating the company's original and revised business plans, as well as his duty of contracting with outside 
professionals, as evidence of his employment in a primarily qualifying capacity. While these responsibilities 
are probative of the beneficiary's employment capacity, the petitioner has overlooked its obligation to clearly 
describe the managerial or executive job duties to be performed by the beneficiary., See 8 C.F.R. 
5 204.5('j)(5). Again, the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1 108. 
Section 101(a)(44)(C) of the Act states that if staffing levels are,used as a factor in determining whether an 
individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs of 
the organization, in light of the overall purpose and stage of development of the organization. A review of the 
above conditions demonstrates that the petitioner would not support the beneficiary in a primarily managerial 
or executive capacity. - 
Here, the petitioner claimed to employ the beneficiary and three employees on the date of filing. The AAO 
again notes discrepancies in the staffing levels claimed by the petitioner and the information contained on its 
quarterly wage report ending March 31, 2005. The exact positions occupied at the time of filing are not clear 
from the record. 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). Moreover, counsel's representations on appeal of the petitioner's current 
staffing levels will not be considered herein as evidence of the beneficiary's managerial or executive 
L 
employment. See Matter of Katigbak, 14 T&N Dec. 45, 49 (Comm. 1971) (stating that a petitioner must 
- 
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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). 
Even if the AAO were to consider the staffing levels represented by the petitioner on its initial organizational 
chart, it does not appear that the reasonable needs of the petitioner might be met through the services of its 
five employees. The petitioner represents itself as a retail grocery store and delicatessen, offering breakfast, 
lunch and dinner and catering options. The petitioner also discussed its intent to rent mopeds in addition to 
operating its grocery store.' As the petitioner is offering meals for breakfast, lunch, and dinner, it is 
reasonable to assume that it operates at least ten to twelve hours a day. A review of the staffing levels, 
however, reflects the employment of one food service provider who shares the responsibilities of processing 
sales with another salesperson, an operations manager who records inventory, sales and work schedules, and 
an assistant manager who order supplies and negotiates with suppliers. Based on this analysis, it does not 
appear that the workers employed at the time of filing could meet the reasonable needs of the petitioning 
entity without the beneficiary actively participating in non-qualifying duties of the business, such as food 
preparation, sales, purchasing, receiving and stocking inventory, and maintaining the store's appearance. 
Additionally, the petitioner did not address who would perform the non-qualifying tasks related to its moped 
rental department, including the duties associated with importing the mopeds to the United States, as well as 
the rental and maintenance functions. The AAO notes that 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 
Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). Based on the petitioner's representations, it does not appear that 
its reasonable needs might plausibly be met through the employment of the beneficiary in a primarily 
managerial or executive capacity and the work of his subordinate staff. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. 
Counsel mentioned in his October 27, 2005 letter that the beneficiary was employed as the general manager 
of the foreign entity. Counsel referenced the foreign entity's organizational chart, which identified the 
beneficiary as supervising three subordinate staffing levels, as evidence of his employment in a primarily 
executive capacity. On appeal, counsel states that the responsibilities associated with the beneficiary's 
position in the overseas company included hiring, firing, and supervising managerial and supervisory 
personnel, establishing goals and policies, and exercising discretion over the company's daily operations. 
The record does not contain additional evidence describing the beneficiary's position of general manager. 
' While the counsel noted in his October 27, 2005 letter that the petitioner had abandoned its plans to import 
and rent mopeds, the petitioner's revised business plan, although undated, again mentions its "hopes to 
implement a [mloped [rlental [dlepartment," thereby suggesting that the petitioner would offer these services. 
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The limited and vague statements regarding the beneficiary's employment in the foreign entity are not 
sufficient to demonstrate that it was primarily managerial or executive in nature. The petitioner did not offer 
a description of the specific managerial or executive job duties associated with the beneficiary's employment 
as general manager. As noted previously, reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The petitioner has failed to answer a critical question in this case: What did the beneficiary primarily 
do on a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. at 11 08. 
The AAO notes that the foreign entity's organizational chart, in which the beneficiary is depicted as 
supervising two managerial and four supervisory employees, is not adequate to overcome this finding. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). For this additional reason, the petition 
will be denied. 
An additional issue not addressed by the director is whether at the time of filing the foreign and United States 
entities enjoyed a qualifying relationship as required in section 203(b)(l)(C) of the Act. 
To establish a qualifying relationship under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e. a United 
States entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally § 
203(b)(l)(C) of the Act, 8 U.S.C. fj 1153(b)(l)(C); see also 8 C.F.R. 204.56)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
Counsel claimed in his December 1, 2004 letter that the petitioning entity is a wholly owned subsidiary of the 
foreign company as a result of the foreign entity's ownership of 200 shares of stock issued by the petitioner. 
Counsel cites the petitioner's May 6, 2002 stock certificate naming the foreign entity as a stockholder as 
"sufficient" evidence of the claimed parent-subsidiary relationship. With respect to the shares purportedly 
issued to the foreign company, the AAO notes that the petitioner is authorized under its articles of 
incorporation to issue a total of 100 shares, 100 shares less than the foreign entity claims to own. The record 
does not contain copies- of organizational meetings or amended articles of incorporation permitting the 
petitioner to issue more than 100 shares of stock. 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, 59 1-92 (BIA 1988). 
More importantly, Schedule F of the petitioner's 2004 New Jersey Corporation Business Tax Return identifies 
the beneficiary as personally owning 100 percent of the organization's stock. The record is devoid of 
documentation clarifying the petitioner's ownership or substantiating the claim that the petitioner is a wholly 
owned subsidiary of the foreign entity. As a result of these inconsistencies, the AAO cannot conclude that the 
foreign and United 'States entities enjoyed the claimed parent-subsidiary relationship, or any qualifying 
relationship, at the time of filing. The petition will be denied for this additional reason. 
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 
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Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The AAO recognizes the CIS previously approved two L-1A nonimmigrant petitions filed by the petitioner 
for the benefit of the beneficiary. It should be noted that, in general, given the permanent nature of the benefit' 
sought, immigrant petitions are given far greater scrutiny by CIS than nonimmigrant petitions. The AAO 
I 
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 permits an alien to apply for permanent residence in the United States and, if granted, 
ultimately apply for naturalization as a United States citizen. C.' $9 204 and 214 of the Act, 8 U.S.C. $5 1154 
and 1 184; see also 8 3 16 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 CIS 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-IA petition's validity). Because CIS spends less time reviewing L-l petitions than Form 1-140 immigrant 
petitions, some nonimmigrant L-l petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d 25 (D.D.C. 2003). 
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 CIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
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 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were 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 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of 
required evidence in the present record, the AAO finds that the director was justified in departing from the 
previous nonimmigrant approvals by denying the present immigrant petition. 
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 fhlow the contradictory decision of a service 
Page 11 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.