dismissed EB-1C Case: Freight Forwarding And Logistics

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
hd~~~ ,. Washington, DC 20529-2090 
- 
~UBX~~C'O~ - U. S. Citizenship 
and Immigration 
LIN 07 085 53367 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(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. 5 103.5 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, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
JO~. Grissom 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: 
 The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed the instant immigrant 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. 
9 1 153(b)(l)(C). The petitioner, a Texas corporation, operates a freight forwarding and logistics business. It 
seeks to employ the beneficiary as its president. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that "the status of the company 
has improved dramatically since the filing of the petition." Counsel asserts that the projected improvements 
were mentioned in the initial filing and requests that the petitioner's new clients and personnel be taken into 
consideration in determining whether the beneficiary will be employed in a primarily managerial or executive 
capacity. 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 executive. 
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. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Page 3 
The sole issue addressed by the director is whether the petitioner established that 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. 5 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 10 l(a)(44)(B) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(B), defines the term "executive capacity" as 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 immigrant visa petition was filed on January 26, 2007. The petitioner indicated on Form 1-140 that the 
beneficiary would be employed as president of the U.S. company, which states that it employs two people. 
The petitioner attached a lengthy position description for the beneficiary, noting that the beneficiary's 
responsibilities have been divided into four "phases" according to the company's plans for the United States 
office. The beneficiary's "endeavors" are described as follows: 
a) 
 To implement a Service Center at [the petitioner], Laredo, TX. (Phase one) and start 
operation with Global Companies. Time frame for Phase one: 10 to 14 months 
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b) 
 To launch Laredo, TX as the base Service Center to expand into USA, Canada, and 
Mexico (Phase two). Time frame for phase two: 12 to 24 months 
c) 
 To stabilize the operation with a yearly growing ratio of 5% per year (Phase three) 
Time frame for phase three: 12 to 24 months 
d) 
 To complement Nuevo Laredo operation Center with Laredo, TX Logistic Center to 
Laredo, Texas (Phase four) Time frame for phase four: 6 to 12 months. 
The petitioner provided a list of job duties that the beneficiary has performed or will perform during each 
phase of the petitioner's plan. The petitioner indicated that most of the "phase one" duties are completed while 
some are "in process" or part of a continuous effort. The duties that are identified as "in process" or 
continuous are as follows: 
Overview and detail of the financial structure (10% of beneficiary's time) 
Establish systems and process (10% of beneficiary's time) 
Identify and hire the initial workforce (1 0% of the beneficiary's time) 
Marketing effort (new clients) originally for phase two (continuous effort) 
The petitioner indicated that a main objective during phase one is "the selling effort of [the petitioner] as a 
Logistic Center at the same time of adjusting and implementing the operation." The petitioner stated that the 
U.S. operation is now financially stronger, with global logistics clients, and noted that the beneficiary will 
perform the following duties as the company enters "phase two": 
Consolidate phase one (20%) 
Identify and hire the work force (25%) 
Training programs for new personnel (30%) 
Establish the sales force an office in Laredo, to promote Mexican Custom dispatch and logistic 
services in the area. (no percentage assigned) 
Consolidate and run the day-to-day operation (50%) 
Detail the financial structure of the project (10%) 
Finally the petitioner indicated that the beneficiary would perform the following duties during phases three 
and four: 
Phase Three: Foundations for Growth 
Consolidate phase one and two (1 5%) 
Enter into a rotating offices training program (15%) 
Identify and hire a general manager for [the petitioner] (25%) 
Make a market study to determine two cities within continental USA to establish sale 
offices to promote Mexican Custom dispatch and logistic services (15%) 
Make a study to consider enter into an strategic alliance with a Hong Kong or Asian 
Logistic Company (1 0%) 
Consolidate and Run the day to day operation (40%) 
Phase Four: Full Integration 
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Make to [sic] study to decide close Nuevo Laredo Logistic Service an [sic] integrate it 
to Laredo, TX center (40%) 
Identify and hire the additional personnel (20%) 
Implement an [sic] strategic alliance with an Asian Logistic Company with offices in 
USA (40%) 
Run the day to day operation (0%) 
Supervise the day to day operation (1 0%) 
The petitioner submitted an organizational chart showing the combined operations of the U.S. entity and its 
Mexican affiliate, Soluciones Aduanales. The beneficiary is identified as chief executive officer of the 
entire operation. With respect to the U.S. company, the beneficiary is listed as "general coordinator" 
supervising a warehouse manager and an accounting and financial advisor. The chart does not identify the 
warehouse manager by name and it was unclear whether the position was filled at the time of filing. 
The director found the initial evidence insufficient to establish the beneficiary's employment in a primarily 
managerial or executive capacity. Accordingly, the director issued a request for evidence (RFE) on August 
13, 2007. In the WE, the director acknowledged the four-phase position description submitted and 
requested additional explanation regarding the beneficiary's "permanent role and job duties." The director 
also requested additional evidence regarding the petitioner's organizational structure, including a more 
detailed organizational chart for the U.S. entity, a brief summary of the job duties and educational 
requirements for each position the beneficiary will supervise, and copies of all Forms W-2, Wage And Tax 
Statement, issued in 2006. Finally, the director requested that the petitioner provide more detailed 
information regarding the scope and nature of the U.S. petitioner's business operations, including a 
photocopy of a recent duty schedule or roster indicating which employees are scheduled to work during 
which hours. 
In its response to the RFE, received on November 5, 2007, the petitioner submitted a revised organizational 
chart on which it included employees to be hired during "phase two" of operations, specifically, three 
logistics coordinators and customs dispatchers. The chart indicates that these employees will report to the 
beneficiary along with the warehouse manager and accounting/financial advisor. The only subordinate 
employee identified by name was the accounting and financial advisor. 
The petitioner attached descriptions for the warehouse manager, customs dispatcher and logistic coordinator 
positions. The petitioner indicated that the warehouse manager and two to three customs dispatchers would 
work in the freight forwarding services department, which will provide such services as loadinglunloading 
products; inventory control; and forwarding products from and to the United States. The petitioner indicated 
that two to four logistics coordinators will: "offer logistic services to our Customers; "deliver Logistic 
Solutions, creating value added and efficiencies to our Customers"; "supervise the appropriate response and 
information to customers"; "coordinate freight forwarding services"; and "coordinate pick up, freight - 
either ground, maritime or air - transfer trucks to the point of delivery to our customers." Finally, the 
petitioner stated that it will require custom specialists for "the end of phase two or phase three." 
In response to the director's request for additional evidence regarding the nature and scope of the petitioner's 
business, the petitioner submitted a statement explaining that the petitioner was originally established in 2001 
as strictly a freight forwarding business, but is currently implementing its four-phase business plan to 
restructure the U.S. business and to use it as a platform to enter the global logistics sector. The petitioner 
explained that as part of "phase one" of its U.S. business plan, it initiated a "selling effort," specifically in 
South America. The petitioner noted that phase one took a considerable amount of time, but resulted in 
success, particularly in the Chilean market. The petitioner further described the state of its operations as 
follows: 
So [the petitioner] today is providing freight-forwarding services, using an outsourced 
warehouse and as part of phase two, their own facility, and logistic services to Chilean and 
Chinese companies. Phase one has given the financial stability and the structure to continue 
with phase two. 
[The petitioner] is in the process of changing from phase one to phase two. This means that, 
as stated in the activities of Phase two it is time to "...identify and hire the work force ...," as 
the growth path demands it. Accordingly, phase two is starting to be implemented. 
[The petitioner] does not use a rooster [sic]. But the warehouse supervisors work full time, 
and [the beneficiary] is providing the logistic services, supported by the sister companies and 
foreign trade service companies suppliers, -such as Custom House Broker, Trucking 
companies, LTL and LCL companies-, as considered for phase one and the beginning of 
phase two. 
Finally, with respect to the beneficiary's "permanent job duties" the petitioner explained that once the 
petitioning company becomes the logistic center for the full Mexican and U.S. operations (i.e., at the 
completion of "phase four," the beneficiary's main role will be supervising all operations, will supervise office 
managers at each Mexican, U.S. and foreign locations, and will "structure the long term strategic planning and 
strategies." The petitioner listed the beneficiary's proposed permanent duties as follows: 
a) Strategic Planning 
b) Overall supervision 
c) Delivery continuous growth 
d) New offices growth 
e) Manage business risk 
f) 
 Deliver profits to the future shareholders 
g) Target selling to specific companies 
The petitioner did not submit copies of its Forms W-2 for 2006, although its 2006 IRS Form 1120, U.S. 
Corporation Income Tax Return, shows that the company paid $45,340 in salaries and wages for the year. 
The director denied the petition on May 9, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. In denying the petition, the 
director observed that the petitioner provided no specific start and end dates for the four phases listed and 
determined that "the fact that the beneficiary's projected job duties will be significantly altered as each 
successive phase is completed makes it difficult for the USCIS to ascertain whether the duties of the proffered 
position conform to those of an executive or a manager." The director also found that certain duties articulated 
for each one of the four phases "appear to be at variance with the definitions of executive and managerial 
responsibilities." 
The director stated that performing the day-to-day duties involved in the running of a small business is . . . not 
necessarily a managerial or an executive function. The director noted that the petitioner did not clearly 
indicate who the beneficiary will be supervising, and observed that the petitioner appears to be still in the 
process of starting up its U.S. operations and hiring staff. Citing Matter of Katigbak, 14 I&N Dec. 45,49, the 
director noted that the petitioner must establish eligibility at the time of filing the petition. The director 
concluded "the petitioner may well be in the process of hiring staff for their U.S. operation, and the 
beneficiary may well be capable of directing them; but, as of the priority date of the instant petition, the staff 
whom the beneficiary would have been expected to manage do not appear to have been in place." 
On appeal, counsel for the petitioner provides the following statement on Form I-290B, Notice of Appeal or 
Motion: 
The status of the company has improved dramatically since the filing of the petition, and 
certainly since the issuance of the denial by your agency. The company is now in Phase I1 (of 
the projected four phases). The company has now numerous clients and more personnel. This 
projected improvements [sic] were mentioned in his application and we wish your office 
would have given us the opportunity to show him before issuing the denial. 
The evidence submitted on appeal includes: (1) a detailed monthly general ledger and other financial 
information dating from October 1, 2007 until March 3 1,2008; (2) a Form 941, Employer's Quarterly Federal 
Income Tax Return, for the first quarter of 2008, indicating that the petitioner paid $20,200 to the beneficiary 
and $2,808 to (3) copies of IRS Forms W-2 for 2007 showing that the petitioner paid $54,000 to the 
beneficiary and $2,808 to (4) the petitioner's 2007 Form 1120; (5) an updated organizational 
chart dated June 2008 which shows that the U.S. company employs as Logistic Manager and 
as Logistic Coordinator, with vacancies for a general manager, a warehouse manager, and a 
second logistics coordinator; (6) information regarding the company's new clients, excerpted from the clients' 
public web sites; and (7) a revised, updated job description for the beneficiary. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
Prior to addressing this issue, the AAO must emphasize that the critical facts to be examined are those that 
were in existence at the actual time of filing the petition. It is a long-established rule in visa petition 
proceedings that a petitioner must establish eligibility as of the time of filing. A visa petition may not be 
approved based on speculation of future 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); Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
1998). 
If the petitioner or beneficiary becomes eligible under a new set of facts, the proper course of action is to file 
a new petition. Despite the previous denial, there is no bar to the petitioner's filing of a new petition 
supported by new evidence of eligibility. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $204.5('j)(5). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. In addition, the definitions of executive and managerial 
capacity have two separate parts. First, the petitioner must show that the beneficiary performs the high-level 
responsibilities that are specified in the definitions. Second, the petitioner must show that the beneficiary 
primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to- 
day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 
1991). 
The petitioner's descriptions of the beneficiary's duties offer little insight into what he does on a day-to-day 
basis. Moreover, the majority of the position description provided is speculative in nature, as the petitioner 
appears to have been nearing the end of "phase one" of its business plan and perhaps beginning the transition 
to "phase two" at the time of filing. Based on the evidence of record, the petitioner has not progressed beyond 
phase two as of the date the appeal was filed, so the AAO will not consider any future responsibilities 
attributed to the beneficiary during "phase three" and beyond. Again, a visa petition may not be approved 
based on speculation of future 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; Matter of Katigbak, 14 I&N Dec. at 49. 
There is also uncertainty in the record as to whether the petitioner had progressed past phase one of its 
proposed plan as of January 2007 when the petition was filed. During phase two, the beneficiary is expected 
to allocate a significant portion of his time to identifying and hiring a work force, establishing training 
programs for new personnel, and establishing the sales force, while running the day-to-day operation of the 
company. The petitioner did not claim that the beneficiary had hired any subordinate employees as of 
November 2007 when it responded to the director's RFE. Therefore, it is unclear how much, if any, of the 
beneficiary's time was being devoted to "phase two" responsibilities at the time the petition was filed. 
The beneficiary's "phase one" duties, as described by the petitioner, have not been shown to be primarily 
managerial or executive in nature. At the time of filing, the petitioner indicated that the beneficiary was still 
in the process of establishing "systems and process[es]" for the company, undertaking marketing efforts to 
obtain new clients, identifying and hiring an initial workforce, detailing the financial structure of the 
company, and running the "day-to-day operation." Based on this brief description, the beneficiary's exact role 
in marketing, selling and providing the petitioner's logistic and freight forwarding services cannot be 
discerned. The petitioner did not indicate how the beneficiary would carry out his responsibilities or clearly 
indicate that subordinate employees would relieve him from performing non-qualifying duties associated with 
his assigned functions. 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)). 
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 failed to provide 
any detail or explanation of the beneficiary's activities in the course of his daily routine. The actual duties 
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themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, in response to the RFE, the petitioner stated that the beneficiary "is providing the logistic services, 
supported by the sister companies and foreign trade service companies suppliers, -such as Custom House 
Broker, Trucking companies, LTL and LCL companies-, as considered for phase one and the beginning of 
phase two." The petitioner did not elaborate as to how other companies are assisting the beneficiary to 
provide the petitioner's logistics services or relieving him from performing non-managerial duties associated 
with this function, nor did it provide documentation related to these outside and other service providers, such 
as the claimed outsourced warehouse. Again, going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N 
Dec. 158, 165 (Comm. 1998). 
The evidence of record demonstrates that the petitioner had not yet hired any of the proposed logistics 
coordinators at the time the petition was filed, or at the time the petitioner responded to the RFE, nor is there 
evidence that the beneficiary had established a sales force for the company. At the same time, the record 
shows that the petitioner was in fact doing business as a freight forwarder and logistics services provider in 
2006 and 2007, and gaining new clients, with the beneficiary as its sole employee. Therefore, it is reasonable 
to conclude, and has not been proven otherwise, that the beneficiary himself was primarily responsible for 
both marketing and selling the petitioner's services and providing logistics coordination services at the time 
the petition was filed, and throughout 2007. 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 10l(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). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 5 2 14.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 
 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). Although the AAO is satisfied 
that the beneficiary has the authority to hire personnel at all levels, the petitioner has not established that the 
beneficiary had hired any employees as of the date of filing, or that he was supervising any employees within 
the U.S. company as of January 2007. 
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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish 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 
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nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. 5 204.50)(5). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. Here, the petitioner has not identified a function to be managed by the beneficiary or 
identified the qualifying duties to be performed in managing the function. Furthermore, although a function 
manager need not directly supervise employees, it is the petitioner's obligation to establish that the day-to-day 
non-managerial tasks of the function managed are performed by someone other than the beneficiary. Here, 
the petitioner has neither clearly explained nor documented how the petitioner is able to operate as a one- 
person freight forwarder and logistics services provider without the beneficiary's regular participation in the 
non-managerial, day-to-day services of the company. Accordingly, the petitioner has not established that the 
beneficiary will serve as a function manager. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See 5 10l(a)(44)(C) of the Act, 
8 U.S.C. 5 1101(a)(44)(C). 
 Instead, an executive's duties must be the critical factor. However, if USCIS 
fails to believe the facts stated in the petition are true, then that assertion may be rejected. Section 204(b) of 
the Act, 8 U.S.C. 5 1154(b); see also Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Here, the lack of a subordinate staff to provide the services of the U.S. company brings into question how 
much of the beneficiary's time can actually be devoted to the claimed managerial or executive duties. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The absence of a subordinate staff 
sufficient to perform the non-qualifying duties of the petitioner's business is a proper consideration in the 
analysis of the beneficiary's employment capacity. See Q Data Consulting, Inc. v. INS. 293 F. Supp. 25, 29 
(D.D.C. 2003) (holding that the INS' finding that the beneficiary did not work in a primarily managerial or 
executive capacity was "bolstered by the absence of evidence that a sufficient 'subordinate staff will 'relieve 
her from performing non-qualifying duties"'). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In this 
matter, the petitioner has not adequately described the nature of the beneficiary's duties, nor has it 
corroborated the employment of any workers besides the beneficiary and a contracted accountant/financial 
advisor at the time the petition was filed. The fact that the beneficiary manages a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 
1987) (noting that section 101 (a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). While the AAO does not doubt that the beneficiary exercises discretion over the petitioner's 
day-to-day operations and has the appropriate level of authority, the petitioner has failed to demonstrate that 
his duties would be in a primarily managerial or executive capacity as of the date of filing. 
The AAO also acknowledges that the beneficiary continues to serve as chief executive officer of the 
petitioner's Mexican affiliates according to the organizational charts submitted. The beneficiary's employment 
Page 11 
capacity with the foreign entity is not in question. However, the beneficiary's position with the foreign 
entities and any duties performed in his role as chief executive officer are irrelevant to a determination 
regarding whether his role within the U.S. entity will be in a primarily managerial or executive capacity. The 
petitioner has not submitted persuasive evidence that the foreign entity's employees relieve the beneficiary 
from marketing, selling, coordinating or providing the U.S. company's services, such that he can focus his 
attention primarily on managerial or executive duties in the United States. The petitioner must establish that 
the duties the beneficiary performs on a day-to-day basis for the U.S. entity are primarily managerial or 
executive in nature. 
Finally, the AAO notes that, on appeal, counsel for the petitioner does not specifically object to the director's 
findings, but merely expresses his disappointment that the director did not allow the petitioner to submit 
evidence that the company is making progress in implementing its business plan in the United States. The 
petitioner submits evidence of its current staffing, financial status, and the beneficiary's current job duties. 
None of the evidence submitted on appeal is relevant to the issue of whether the beneficiary would be 
employed in a primarily managerial or executive capacity as of the date of filing. Again, 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. at 49. If the 
beneficiary was not performing primarily managerial or executive duties at the time the petition was filed, 
then the petition is not approvable regardless of any subsequent growth achieved by the petitioner while the 
petition was pending adjudication, or after the denial of the petition. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
The remaining issue in this matter regards the previous approval of an L-IA nonimmigrant intracompany 
transferee petition filed on behalf of the beneficiary. The AAO has consistently determined that prior 
nonimmigrant approvals do not preclude USCIS from denying an extension or a separate immigrant petition. 
See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The AAO 
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of 
managerial and executive capacity and on similar definitions of qualifying relationshiplorganization. See 
$5 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1101(a)(44) and 8 C.F.R. $ 204.5(j)(2) and 8 C.F.R. $ 
214.2(1)(l)(ii). Although the statutory definitions for managerial and executive capacity are the same and the 
definitions of qualifying relationshiplorganization are similar, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just these definitions. 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. 
CJ: $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also $316 ofthe Act, 8 U.S.C. $ 1427. 
In general, given the permanent nature of thk benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. Accordingly, many Form 1-140 immigrant petitions are denied after 
USCIS approves prior nonimmigrant Form 1-129 L-l petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 
Form I- 129 nonimmigrant petitions than Form I- 140 immigrant petitions, some nonimmigrant L- 1 A petitions 
are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. 
5 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A petition's 
validity). 
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. See 8 C.F.R. 5 103.8(d). The 
approval of a nonimmigrant petition does not guarantee that USCIS will approve an immigrant petition filed 
on behalf of the same beneficiary. As the evidence submitted with this petition does not establish eligibility 
for the benefit sought, the director was justified in departing from the previous nonimmigrant approval by 
denying approval of the immigrant petition. 
In addition, if any previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, such 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 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). 
Further, 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 any nonimmigrant petitions on 
behalf of a 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.), am, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.Ct. 5 1 (2001). The petitioner has not provided evidence or argument for the record that is 
sufficient to overcome the director's decision in this matter. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. fj 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.