dismissed EB-1C Case: Furniture Design

iw@ng deta deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of flomeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
EAC 05 130 53407 
PETITION: 
 Immigrant Petition for lien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of 4 the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
Robe 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner was established in 2003 in the state of New York. The petitioner claims to be engaged in the 
business of designing furniture and seeks to employ the beneficiary as its general manager. 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. 5 1153(b)(l)(C), as a multinational 
executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that the beneficiary would be employed in a managerial or executive capacity; and 2) the petitioner 
failed to provide sufficient documentation to establish that the beneficiary's foreign employer with whom the 
petitioner claims to have a qualifying relationship continues to exist and conduct business. 
With regard to the first issue, the director made various observations based on the documentation provided by 
the petitioner. First, the director noted that the petitioner's 2004 corporate tax return showed that the 
petitioner paid a total of $28,900' in salaries and wages and further stated that no officers were compensated. 
The director also observed that the tax return showed the beneficiary's title to be that of construction manager 
rather than general manager as originally claimed in the petitioner's Form 1-140. Finally, the director noted 
that the beneficiary's 2004 salary of $6,000 for approximately eight months of work was not commensurate 
with that of a managerial position. 
On appeal, counsel submits a brief claiming that the director's observations were based on erroneous 
information mistakenly provided by the individual who prepared the petitioner's taxes. The petitioner 
provides amended tax return Form 1120X as well as the beneficiary's amended tax return Form 1040X to 
show that the claimed errors had been corrected and that the corrections had been submitted to the Internal 
Revenue Service. 
However, the regulation at 8 C.F.R. 3 103.3(a)(l)(v) states, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
In requiring that the petitioner identify "any erroneous conclusion of law or statement of fact" the error must 
be one made by the director in denying the petition. In the instant matter, the director's observations reflected 
the information provided by the petitioner. Thus, the appeal is in large part based on mistakes made by an 
agent of the petitioner, not the director. The director's comments were accurate observations of the record as 
before her at the time the denial was issued. 
1 
 The director's decision actually states that the petitioner paid "$28,9000" in wages and salaries. 
 The AAO 
acknowledges that the director made a typographical error by adding an additional zero to the correct amount of $28,900, 
which was provided in the petitioner's 2004 tax return. 
While counsel also generally disagrees with the director's conclusion with regard to the second ground of 
ineligibility, no additional evidence is provided to adequately address the director's concerns. Rather, counsel 
provides a sworn affidavit signed by the beneficiary in which the beneficiary essentially mirrors the 
information provided in counsel's brief. The AAO notes that going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Additionally, the AAO notes that the record shows a number of inadequacies that were not addressed in the 
director's decision. First, the record lacks any showing that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity as required by 8 C.F.R. 5 204.56)(3)(i)(B). The petitioner's brief 
description of the beneficiary's job duties with the foreign entity suggest that the beneficiary was responsible 
for marketing and contract negotiation, neither of which can deemed as qualifying tasks. The petitioner failed 
to identify the actual tasks the beneficiary performed in relation to either of those responsibilities, thereby 
malung it impossible for the AAO to conclude that the beneficiary's duties abroad were primarily within a 
qualifying managerial or executive capacity. 
Second, the record contains no evidence to document the petitioner's claimed qualifying relationship with the 
beneficiary's foreign employer pursuant to 8 C.F.R. tj 204.5(j)(3)(i)(C). In fact, the petitioner confuses 
matters further by referring to itself as a branch and a subsidiary of the foreign entity. The AAO notes that 
these two terms are not interchangeable. The term subsidiary is specifically defined in 8 C.F.R. $204.5('j)(2). 
Any entity that can be deemed a subsidiary cannot by definition be deemed a branch. Thus, the terms 
subsidiary and branch are mutually exclusive. The petitioner's apparent misunderstanding of the correct 
terminology aside, the record lacks documentation to substantiate either a parent/subsidiary or a branch 
relationship with the beneficiary's foreign employer. See Matter of Soffici, 22 I&N Dec. at 165. 
Third, the record lacks sufficient documentation to establish that the petitioner had been doing business for 
one year prior to filing the Fonn 1-140 as required by 8 C.F.R. 5 204.5(j)(3)(i)(D). The regulation at 8 C.F.R. 
tj 204.56)(2) states that doing business means "the regular, systematic, and continuous provision of goods andlor 
services by a fm, corporation, or other entity and does not include the mere presence of an agent or office." In 
the instant matter, the Form 1-140 was filed on March 3 1,2005. However, the only evidence establish~ng that the 
petitioner had been doing business during the 12 months preceding the filing of the petition consists of a handfkl 
of contract proposals signed by the beneficiary between June and August of 2004. None of the proposals are 
signed and dated by the other party to show that the contract had been accepted. Moreover, even if the contracts 
had been accepted, the record lacks any evidence to establish that the petitioner was doing business from March 
through May of 2004 and from September 2004 through February 2005. 
Lastly, the regulation at 8 C.F.R. tj 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawfi.11 permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
Page 4 
In the instant matter, the petitioner has not submitted sufficient documentation to establish that it has the 
ability to pay the beneficiary's proffered wage of approximately $36,400. While the record shows that the 
petitioner employed the beneficiary and in fact paid him prior to the filing of the petition, there is no 
indication that the petitioner had the ability to pay the proffered wage at the time the petition was filed as 
required by regulation. 
Service records show the petitioner's previously approved L-1 employment of the beneficiary. 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 CIS 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 $4 101(a)(44)(A) and (B) of the Act, 8 U.S.C. tj 
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. CJ: fjg 204 and 214 of the Act, 8 
U.S.C. $9 1154 and 1184; see also tj 316 of the Act, 8 U.S.C. tj 1427. 
In addition, 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 AM 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 
immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d 22 (D.D.C. 
1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 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. Montgomey, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United states, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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 M's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. In the instant matter, counsel has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in this proceeding. Moreover, the AAO has 
pointed out a number of additional grounds that render the petitioner ineligible for the benefit sought. As 
such, the petitioner has not sustained that burden. Therefore, the appeal will be summarily dismissed. 
ORDER: 
 The appeal is summarily dismissed.