dismissed EB-1C Case: Garment Wholesale And Travel

fdlentifflng data deleted to 
prevent clearly lanwarran ted 
invasion of personal! privaca, 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
IpuBLPC COPY 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 
WAC 05 026 53633 &h 2 4 2006 
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. 
/ 
P. Wiemann, Director 
I Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the employment-based 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 petition seeking 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 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California 
that is doing business as a wholesaler of garments and is also operating a travel agency. The petitioner seeks 
to employ the beneficiary as its president. 
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 claims that the director's denial is based on an erroneous interpretation of 
the statutory definitions of "managerial capacity" and "executive capacity," as well as an incorrect reliance on 
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Counsel contends that the 
beneficiary's proposed employment satisfies the criteria outlined under both employment capacities. Counsel 
submits a brief in support of his claims on 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. 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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) 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, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-today operations of the activity or function for which 
the employee has authority. A frrst-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. 5 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 filed the instant petition on November 5, 2004, noting its employment of the beneficiary as 
president, as well as a staff of seven workers. In an appended letter, dated November 4, 2004, counsel 
provided the following outline of proposed job duties to be performed by the beneficiary: 
Plans, develops, and establishes the policies and objectives of the company in accordance 
with board directives 
Controls and directs the activities of the other employees of the company, with the ability 
to hire and fire and take other personnel actions as required 
Page 4 
Reviews activity reports and financial statements to determine company progress and the 
status of attaining objectives 
Makes revisions in corporate plans in accordance with conditions 
Directs and coordinates formulation of financial programs to provide funding 
Plans and develops marketing and public relations policies designed to improve the 
company's image and market share 
Has the ultimate responsibility for all day to day operations of the company. 
Administers the office. This includes: 1) overseeing personnel activities, including 
maintaining personnel records, hiring and firing, promotion decisions, wage and overtime 
rates; 2) directing bookkeeping and accounting, including preparing the budget, 
collecting payments, billing, etc.; 3) directing maintenance of company facilities and 
equipment. 
Counsel stated that the beneficiary's subordinate staff of seven workers included two managers. Additionally, 
counsel outlined the statutory definitions of "managerial capacity" and "executive capacity," contending that 
the beneficiary satisfied criteria of both employment capacities. 
Counsel also addressed Citizenship and Immigration Services' (CIS) reference to Matter of Church 
Scientology, 19 I&N Dec. 593, 604 (Cornm. 1988) in the prior adjudication of the petitioner's visa petition. 
Counsel challenges CIS' reliance on this matter as a basis for the proposition that a beneficiary who primarily 
performs the tasks necessary to produce a product or to provide a service is not considered to be a manager or 
an executive. Counsel claimed that the 1990 regulations, which defined the terms "managerial capacity" and 
"executive capacity," established a new precedent which no longer addressed a beneficiary's role in 
"produc[ing] a product" or "provid[ing] a service," thereby eliminating the need to rely on Matter of Church 
Scientology International. Counsel contended that Matter of Church Scientology International "represents 
the application of a regulatory provision that no longer exists." Counsel referenced "current law," mainly 
unpublished decisions by the AAO, to substantiate the claim that a beneficiary's employment in a managerial 
or executive capacity is not dependent on the size of the organization or the number of workers employed, 
and claimed: 
[I]f applicants who were the petitioners' sole employees were employed in a 'primarily' 
managerial capacity, despite their performance of most, if not all, of the 'substantive' tasks of 
the business, it is obvious that [CIS] has recognized, in numerous cases since 1991, that the 
performance of substantive tasks of the business, or the function managed, is not a proper 
basis for denial of a multinational manager petition - under the current law. 
Counsel submitted the petitioner's organizational chart on which it identified the following nine positions 
occupied within the company: president, vice-president of operations and administration, manager of travel 
related services, accountant, fashion designer, sales supervisor, and three travel agents. 
On January 13, 2005, the director issued a request for evidence asking the petitioner to submit the following 
documentation pertaining to the beneficiary's proposed employment in a primarily managerial or executive 
capacity: (1) an organizational chart reflecting the petitioner's managerial hierarchy and staffing levels at the 
date of filing the petition and clearly identifying all employees subordinate to the beneficiary; (2) a brief job 
description of the tasks performed by the company's lower-level employees, as well as their educational 
levels, wages and dates of employment; (3) a more detailed description of the job duties to be performed by 
Page 5 
the beneficiary, including the day-to-day job duties performed by the beneficiary over the past six months and 
the education and employment qualifications for the beneficiary's position; (4) an account of the goals, 
policies, and discretionary decisions established and made by the beneficiary during the previous six months; 
(5) copies of the petitioner's California Employment Development Department (EDD) Form DE-6, Quarterly 
Wage Report, filed for the last four quarters; and (6) the petitioner's payroll summary and Internal Revenue 
Service Forms W-2, W-3 and 1099-MISC evidencing compensation paid by the petitioner in 2004. The 
director also noted that, if relevant, the petitioner should provide probative evidence that establishes the 
beneficiary's role as a functional manager. 
Counsel responded in a letter dated April 1,2005 and submitted documentation that was previously provided 
with the filing of the immigrant petition, including counsel's enumeration of the beneficiary's proposed job 
duties. Counsel again defined the terms "managerial capacity" and "executive capacity" and contended that 
the beneficiary would be employed in both capacities. Counsel further alleged CIS' erroneous use of Matter 
of Church Scientology International, claiming it "is not a valid precedent." Counsel also noted the three 
previous L-1A nonimrnigrant visa approved by CIS on behalf of the beneficiary's employment in the same 
position, noting that the sole difference in the facts of this petition was the petitioner's income. With regard to 
the director's January 13, 2005 request for evidence, counsel claimed that the director made "numerous 
demands" that were "non-responsive to the voluminous evidence submitted with the petition." While counsel 
appended additional documentation to his response, the majority had been submitted with the original filing. 
In his June 6, 2005 decision, the director concluded that the petitioner has not demonstrated that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director noted that the petitioner had failed to substantiate its claim of eight employees with ancillary 
evidence in the form of payroll records, quarterly wage reports or federal wage and tax statements. The 
director also noted that despite the petitioner's undocumented staffing levels, the petitioner claimed on its 
2004 corporate tax return to pay wages in the amount of approximately $68,000. The director stated "[ilf the 
wages paid are accurate it is not clear if the beneficiary or the business is operating in a full-time capacity." 
The director further stated that the "general and vague" job description provided by the petitioner "[failed] to 
convey any understanding of exactly what the beneficiary will be doing on a daily basis," or the percentage of 
time to be spent on each task. The director concluded that the beneficiary would not be managing the 
organization, or a department, subdivision, function or component, nor would he be functioning at a senior 
level with the organization. Consequently, the director denied the petition. 
The petitioner filed an appeal on June 30,2005. In an appended letter, dated June 28,2005, counsel contends 
that the record demonstrates that the beneficiary, as the corporation's president and chief executive officer, 
would be employed in both a managerial and executive capacity. Counsel restates the beneficiary's proposed 
job duties, and outlines the evidence previously submitted by the petitioner in support of the purported 
employment capacities. Counsel focuses on the issue of whether the beneficiary would be "primarily" 
employed in a qualifying capacity, and, following a lengthy discussion about the definition of the term 
"managerial," asserts that "[a] person who conducts the business activities of a company is still a 'manager' of 
that business." Counsel contends that CIS erroneously maintains that "conducting and canying on the 
business" is not a managerial task. Counsel states: 
[The beneficiary] is a man engaged in the business of importing textile goods fkom India for 
sale in the United States. He does not make the goods, he does not physically cany them to 
the United States, but he does direct the activities of the business, being particularly 
Page 6 
concerned with the marketing and sales of the product. He 'conducts' its business, and in 
doing so is inevitably involved in its day-to-day operations or, as [CIS] prefers to call it, the 
'substantive' function of the business. However, doing so is not just 'primarily' managerial in 
nature, it is entirely managerial, if one is following the standard definition of the term. 
Saying that conducting business is equivalent to producing the product which is the subject of 
the business is simply mistaken. 
(Emphasis in original). 
Counsel again challenges CIS' reliance on Matter of Church Scientology International to support the 
proposition that an employee primarily engaged in the production or sale of a product cannot be considered a 
manager or executive, and provides essentially the same discussion as that in his November 4,2004 and April 
1, 2005 letters. Counsel cites other cases in support of the claim that the performance of the "substantive' 
operation of the business" should be deemed to be a managerial task, and further contends that "there is no 
longer even any legal basis for contending that those who spend the majority of their time producing the 
company product are not employed in a 'managerial capacity' if they otherwise, in fact, 'manage' the business 
as that term is defined in the dictionary, since the regulatory provision which was the basis for that position no 
longer exists." Counsel states: 
The evidence shows, beyond any doubt, that [the beneficiary] is operating a business 
importing clothing manufactured in India to be sold in the United States and occupies a 
position as the President of the company. He employs six or seven people in this business 
and pays them, and himself, poorly. The preponderance of this evidence indicates that [the 
beneficiary] is most certainly involved in the day to day operation of the business, i.e. he 
performs some of its 'substantive' tasks. The evidence does not indicate whether a 'majority' 
of his time is spent in performing these tasks and it is the petitioner's position that the law 
does not require it to prove or disprove any such thing, that 100% of his time could be spent 
on such tasks without affecting the fact that he still 'manages' the business and is thus a 
'managerial capacity' employee, and that [CIS] does not have a proper legal basis for claiming 
this must be established. Thus its concern over this point is mistaken and irrelevant and the 
lack of evidence directly applicable to it factually and legally meaningless to a proper 
adjudication of the merits of the petition. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the petitioning 
entity in a primarily managerial or executive capacity. 
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(i)(5). The limited job description offered by 
the petitioner fails to identify the specific daily managerial or executive job duties to be performed by the 
beneficiary. Although the director requested a detailed job description of the beneficiary's proposed role in 
the petitioning entity, counsel provided an outline of job duties identical to that in his November 4, 2004 
letter. Additionally, counsel did not submit an allocation of the amount of time the beneficiary would devote 
to each task, as also requested by the director. On appeal, counsel submits the same brief outline, and again, 
dismisses the opportunity to submit additional documentary evidence that would assist the AAO in its review. 
The AAO will not attempt to surmise the managerial and executive job duties associated with "establish[ing] 
the policies and objectives of the company," "control[ling] and direct[ing] the activities of the other 
Page 7 
employees of the company," "mak[ing] revisions to corporate plans," and "direct[ing] and coordinat[ing] 
formulation of financial programs." The petitioner has failed to satisfy the regulatory requirement at 8 C.F.R. 
fj 204.5@(5), which requires that the petitioner "clearly describe the duties to be performed by the 
[beneficiary]." Case law dictates that a petitioner's blanket claim of employing the beneficiary as a manager 
or executive without a description of how, when, where and with whom the beneficiary's job duties occurred 
is insufficient for establishing employment in a primarily managerial or executive capacity. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The actual duties 
themselves will reveal the true nature of the employment. Id. at 1108. 
The AAO notes that the petitioner failed to supply extensive amounts of evidence specifically requested by 
the director that would have been relevant to establishing the beneficiary's employment capacity. Counsel 
notes that CIS has been advised against sending a request for a voluminous amount of evidence when only a 
small amount is required. Despite the director's comprehensive request for evidence, it is clear that counsel 
chose to ignore the requests for specific documentation that is pertinent to the present issue. A review of the 
record negates counsel's claim that "much, if not all, of the items demanded in the [request for evidence] were 
included in [the initial] evidence [submitted]." Specifically, besides disregarding the director's request for a 
detailed description of the beneficiary's proposed position, counsel neglected to submit the petitioner's payroll 
summary, IRS Forms W-2 and W-3, quarterly wage reports, and a description of the tasks performed by the 
lower-level employees. This information is essential to determining whether the petitioner employs a staff 
sufficient to support the beneficiary in a primarily managerial or executive capacity. In other words, absent a 
support staff to perform the non-qualifying functions of the business, it is reasonable to conclude that the 
beneficiary would assume the responsibility of personally performing the petitioner's day-to-day functions. 
As it is presently constituted, the record does not identify the tasks to be performed by the beneficiary's lower- 
level employees. The regulation states that the petitioner shall submit additional evidence as the director, in 
his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established, as of the time the 
petition is filed. See 8 C.F.R. fjfj 103.2(b)(8) and (12). Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
The AAO acknowledges the petitioner's organizational chart, which reflects the employment of nine workers, 
yet notes an inconsistency in the information contained on the chart and on Form 1-140. The petitioner 
represented on the visa petition that it employed a staff of seven workers. 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). 
A review of the beneficiary's job description further suggests that the beneficiary would be performing non- 
managerial and non-executive functions of the petitioner's business. In particular, the beneficiary would be 
personally responsible for planning the company's marketing and public relations policies, as well as 
"administer[ing] the office," which counsel stated included such day-to-day functions as maintaining 
personnel records and billing accounts, preparing the company's budget, collecting payments, and directing 
the maintenance of the company's facilities and equipment. As the petitioner failed to provide an allocation of 
the amount of time the beneficiary would devote to these tasks, the AAO cannot conclude that the beneficiary 
primarily performs high-level managerial or executive responsibilities and does not spend a majority of his 
time on day-to-day functions. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Contrary to counsel's numerous objections, the foremost requirement for classification as a manager or 
executive is demonstrating that the beneficiary would be primarily performing managerial or executive job 
duties. Counsel incorrectly claims that CIS may no longer rely on Matter of Church Scientology 
International for the proposition that an employee who primarily performs the tasks necessary to produce a 
product or to provide services may not be considered to be employed in a managerial or executive capacity. 
Sections 101(a)(44)(A) and (B) of the Act, in which the terms "managerial capacity" and "executive capacity" 
are defined, specifically dictate that a beneficiary must "primarily" perform each of the four named criteria as 
part of his or her assignment in order to be considered a manager or executive of the petitioning entity. The 
court in Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991), stating that the petitioner's 
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is 
managerial in nature and what proportion is actually non-managerial, affirmed the AAO's finding that the 
petitioner "failed to establish that [the beneficiary's] duties . . . would be primarily executive or managerial". 
(Emphasis in original). Additionally, in IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999), the Court held that regardless of whether a beneficiary is managing what would be construed as an 
"essential" function, the modification of the definition of "managerial capacity" by the word "primarily" 
requires a petitioner to document and quantify the amount of time the beneficiary would dedicate to his 
purported managerial tasks. Whether a beneficiary is an "activity" or "function" manager "turns on whether 
[the petitioner] has sustained [its] burden of proving that his duties are 'primarily' managerial." Id. at 24. 
Furthermore, although unpublished, the Court in Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 
576839 (9th Cir, 1995), citing Matter of Church Scientology International, affirms the proposition that an 
employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. An employee's "impressive title" without 
additional specific evidence of the beneficiary's compliance with the statutory criteria for "managerial 
capacity" and "executive capacity" is not sufficient for classification as a multinational manager or executive. 
See Boyang, Ltd. v. I.N.S., 67 F.3d 305. As a result, CIS' requirement that the petitioner demonstrate the 
beneficiary's employment in aprimarily qualifying capacity is consistent with prior case law. 
Counsel fails to substantiate his additional claim that the beneficiary would be employed as a functional 
manager of the petitioning entity. 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, 8 U.S.C. 
9 1101(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, i.e. identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. 8 C.F.R. 5 204.5(j)(5). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than pet$orms the 
duties related to the function. Here, counsel makes a cyclical claim that "[a] person who manages the 
organization is unquestionably managing an 'essential function' of that organization since the operation of the 
business is certainly 'essential' to its existence." Counsel's blanket assertion does not satisfy the specific 
requirements outlined in the regulation at 8 C.F.R. tj 205.4(j)(5). Under counsel's theory, demonstrating 
employment as a functional manager would require nothing more than a claim of managing or operating the 
petitioner's business. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). As noted above, the claim of employment as 
a functional manager requires, at a minimum, a clear breakdown of the amount of time the beneficiary would 
dedicate to his purported managerial tasks. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d at 24. 
Counsel cites several decisions in which the AAO determined that the beneficiary met the requirements of 
serving in a managerial and executive capacity for L-1 classification even though he was the sole employee. 
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in 
the unpublished decision. While 8 C.F.R. $ 103.3(c) provides that AAO precedent decisions are binding on 
all CIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Counsel also addresses CIS' prior approvals of an L-1A visa for the employment of the beneficiary in a 
position equivalent to the position proposed herein. 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 $9 10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 10 1 (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 nonirnmigrant 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. Cf: $$ 204 and 214 of the Act, 8 U.S.C. $9 1154 
and 1184; see also $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-1A petition's validity). Because CIS spends less time reviewing L-1 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 CIS 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 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. at 597. 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 
approval 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 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 (2001). 
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 petitioner demonstrated its ability to 
pay the beneficiary's proffered annual salary of $48,000. Following the director's request for evidence of the 
petitioner's ability to pay, counsel noted a change in the beneficiary's salary from the proposed amount of 
$48,000 to $20,072, the beneficiary's salary the previous year, and one which counsel stated the petitioner 
"can, beyond a doubt, pay." The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. $ 103.2(b)(8). When 
responding to a request for evidence, a petitioner must establish that the position offered to the beneficiary 
when the petition was filed merits classification as a managerial or executive position. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). The petitioner's decision to decrease the beneficiary's 
salary by approximately $28,000 after the issue was raised by the director casts doubt on the petitioner's 
ability to pay the proffered salary, as well as the authenticity of the facts alleged in the original petition. A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 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. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
This conclusion is reinforced by the information contained on the petitioner's 2004 corporate tax return, which 
identifies the beneficiary's salary of $20,072 and taxable income in the amount of $9,543. In determining the 
petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner employed the 
beneficiary at the time the priority date was established. If the petitioner establishes by documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this evidence 
will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In the present 
matter, the petitioner did not establish that it had previously employed the beneficiary at the proposed salary 
of $48,000. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Suva, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 71 9 F. Supp. 532 (N.D. 
Page 11 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), afyd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income, 
623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have considered 
income before expenses were paid rather than net income. Finally, there is no precedent that would allow the 
petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
As the petition's priority date falls on November 5, 2004, the AAO must examine the petitioner's tax return 
for 2004. The petitioner's IRS Form 1120 for calendar year 2004 presents a net taxable income of $9,543. 
The petitioner could not pay the additional $28,000 of the beneficiary's salary out of this income. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has as of the 
date of filing and is the amount of cash or cash equivalents that would be available to pay the proffered wage 
during the year covered by the tax retum. As long as the AAO is satisfied that the petitioner's current assets 
are sufficiently "liquid" or convertible to cash or cash equivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. The petitioner's 
liabilities, which include accounts payable in the amount of approximately $182,000, far exceed the 
petitioner's assets of $70,000. Accordingly, the petitioner has not demonstrated its ability to pay the 
beneficiary's initial proffered salary of $48,000. 
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), am. 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 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.