dismissed EB-1C Case: Garments

PUBLIC COPY 
identifying data deleted to 
prevent clearly unwarranted 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 0 1 1 15 52 175 Office: VERMONT SERVICE CENTER 
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: SELF-REPRESENTED 
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. 
I +-.."- /% d 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 01 115 52175 
Page 2 
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 dismissed. 
The petitioner is a New York sole proprietorship seeking to employ the beneficiary as its president. 
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 the following four independent 
grounds of ineligibility: 1) the petitioner failed to establish that it has a qualifying relationship with the 
beneficiary's foreign employer; 2) the petitioner failed to establish that it was doing business for one year 
prior to filing the Form 1-140; 3) the petitioner failed to establish that the beneficiary was employed abroad in 
a qualifying managerial or executive capacity; and 4) the petitioner failed to establish that it would employ 
the beneficiary in a managerial or executive capacity. 
On appeal, the petitioner disputes the director's conclusions and asserts that a response to the director's 
request for additional evidence (RFE) was submitted. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
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 first issue in this proceeding is whether the petitioner has a qualifying relationship with a foreign entity. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states in pertinent part: 
EAC 01 115 52175 
Page 3 
Affiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In support of the Form 1-140, the petitioner submitted a letter dated February 12, 2001 in which it claimed 
that it is a subsidiary of the beneficiary's foreign employer. The only documentation provided in support of 
this claim is stock certificate no. 1 issuing 102 shares to the beneficiary's claimed foreign employer. 
Accordingly, the director issued an WE dated October 15, 2001 instructing the petitioner to supplement the 
record with a stock ledger and its articles of incorporation. 
In response, the petitioner provided a letter dated January 3 1, 2002 explaining that it is not a corporation and 
therefore did not file articles of incorporation. The petitioner further explained that it is a sole proprietorship 
owned and operated by the beneficiary and provided a Certificate of Business to support its claim. 
The director denied the petition on August 2, 2002 concluding that the petitioner failed to establish that it has 
a qualifying relationship with the beneficiary's claimed foreign employer. The director noted the petitioner's 
initial response letter dated January 25, 2002 in which the petitioner requested additional time to supplement 
the record. While the director did not comment on the petitioner's second letter, which was submitted on 
January 30, 2002, he properly concluded that the petitioner failed to establish that it has a qualifying 
relationship with the beneficiary's claimed foreign employer. First, the regulation and case law confirm that 
ownership and control are the factors that must be examined in determining whether a qualifying relationship 
exists between the United States and foreign entities for purposes of this visa classification. Matter of Church 
Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 
19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornrn. 1982). 
In the present matter, the only documentary evidence addressing the issue of common ownership between the 
U.S. and foreign entities is a single stock certificate, which is unaccompanied by other corroborating 
evidence, such as a stock ledger. That being said, the petitioner explained in the second response to the WE 
that it cannot submit a stock ledger or other corporate documents because it is not a corporation, but rather is 
a sole proprietorship. 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 
EAC 01 115 52175 
Page 4 
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). The petitioner's explanation contradicts the information conveyed in the 
corporate stock certificate and further undermines the overall claim that a qualifying relationship exists 
between the U.S. petitioner and the beneficiary's purported overseas employer. 
Second, first-preference immigrant status under section 203(b)(l)(C) of the Act, 8 U.S.C. !j 1153(b)(l)(C), 
requires that the beneficiary have a permanent employment offer from the petitioner. In this matter, it appears 
more likely than not that the petitioner is in fact a sole proprietorship that is owned and operated by the 
beneficiary, a nonimmigrant alien. A petitioner who is a nonimmigrant temporary worker is not competent to 
offer permanent employment to an alien beneficiary for the purpose of obtaining an immigrant visa for the 
beneficiary under section 203(b)(l)(C) of the Act. Matter of Thornhill, 18 I&N Dec. 34 (Comm. 1981). 
Therefore, by virtue of being a sole proprietorship rather than a business entity separate from its owner, the 
petitioner cannot have the requisite qualifying relationship and is ineligible to file an immigrant petition.. 
The second issue in this proceeding is whether the petitioner was doing business for one year prior to filing 
the Form 1-140 pursuant to 8 C.F.R. €j 204.5(j)(3)(i)(D). 
The regulation at 8 C.F.R. tj 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
In the present matter, the only evidence that indicates that the petitioner was doing business prior to filing the 
Form 1-140 is a single shipping document dated July 20, 2000 in which the petitioner is named as the 
consignee of products shipped from Pakistan. In the WE, the director properly stated that the other 
documents name Aqsa Garments, Inc. but do not name the petitioner as a party to the sales and shipping 
transactions. Therefore, the director's RFE instructed the petitioner to, explain its relationship with Aqsa 
Garments, Inc., if any, and to submit additional evidence to establish that it was doing business for the 
requisite 1 2-month period. 
In response, the petitioner explained role as one of receiver of goods exported by the foreign 
entity and collaborator in the sales transactions. However, the petitioner provided no additional 
documentation to establish that it was doing business according to the provisions cited in 8 C.F.R. 
€j 204.5(j)(3)(i)(D). It is noted that failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. €j 103.2(b)(14). 
On appeal, the petitioner again attempted to explai role in its sales process and explained 
that its own role is limited to that of manager and settler of disputes and problems. The petitioner further 
stated that the sale and shipment of merchandise takes place directly between the foreign seller and the U.S. 
purchasers. The petitioner's explanation is confusing and fails to specify exactly which services it provides 
and which party is the recipient of those services. Furthermore, the record contains no evidence to establish 
that the petitioner generates income from providing liaison services. 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)). In the present matter, the petitioner has failed to provide sufficient 
evidence to establish that it has provided goods and/or services on a "regular, systematic, and continuous" 
basis. See 8 C.F.R. !j 204.5(j)(2). 
EAC 01 115 52175 
Page 5 
The third and fourth issues in this proceeding call for an analysis of the beneficiary's employment capacity. 
The first of these issues is whether the beneficiary was employed abroad in a primarily managerial or 
executive capacity, and the second issue is whether the petitioner established, at the time it filed the Form I- 
140, that the petitioner would employ the beneficiary in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1 101(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. 
With regard to the beneficiary's foreign employer, the petitioner's support letter dated February 12, 2001 
merely provided the name of the entity and the beneficiary's position title. Although the petitioner claimed 
EAC 01 115 52175 
Page 6 
that the beneficiary was employed abroad in a qualifying managerial capacity, it did not elaborate on the 
beneficiary's actual duties. 
With regard to the beneficiary's position with the U.S. petitioner, the following statements were provided: 
[The beneficiary] is managing the organization as its [gleneral [m]anager[.] He has the 
authority to hire or fire the staff under his control. He has the discretion over day[-]to[-]day 
operations of the activity and functions for which he has the authority. 
He plans, organize[s], direct[s] and controls the branch. He is loolung after the imports from 
Pakistan of the [lleather [glloves, [slocer [sic] balls, [wleightlifting belts, Judo [klarate 
[blelts, [clycle [glloves & jogging suits, meets the customers, books the orders, advise[s] the 
head office about all details and terms and conditions settled for the shipments. He can enter 
into contracts with the customers of any amount. He also takes care of the quality control of 
the imported goods and make[s] spot decisions on behalf of the parent firm too [sic]. 
The petitioner also provided all four of its quarterly tax returns for the year 2000 as well as a state wage and 
withholding report, which shows that it paid a total of $12,2 10 in wages to two employees. 
In the WE issued on October 15, 2001, the petitioner was instructed to provide evidence of the foreign 
entity's management and personnel structure as well as the number of employees at the foreign entity. The 
director clearly stated that this information was needed in order to assist Citizenship and Immigration 
Services (CIS) in determining whether the beneficiary was employed abroad in a qualifying managerial or 
executive capacity. With regard to the beneficiary's proposed employment with the U.S. petitioner, the 
petitioner was asked to provide a list of its employees identifying each individual by name and position title. 
The petitioner was also asked to provide an hourly breakdown of the duties performed by each of its 
employees, including the beneficiary. The director also requested tax documentation in the form of W-2s for 
each employee for the year 2000 and two of the petitioner's most recent quarterly tax returns. 
In response, the petitioner provided the foreign entity's organizational chart with the requested information. 
The beneficiary and one other individual were illustrated as the senior-most employees within the foreign 
entity's organizational hierarchy. The beneficiary's position description was not provided. 
With regard to the beneficiary's proposed U.S. employment, the petitioner provided tax documentation for the 
year 2000, but failed to provide two of its most recent quarterly tax returns as requested in the WE. 
Therefore, while the petitioner claimed in the January 3 1, 2002 response letter that it employs four individuals 
including the beneficiary, this claim was not corroborated with documentary evidence. Furthermore, while 
the petitioner named the four individuals it claimed to employ and provided their position titles and number of 
hours worked on a weekly basis, it failed to comply with the director's request for each employee's hourly 
breakdown of specific duties. As previously stated, failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). 
Accordingly, the director properly concluded that the petitioner failed to establish that the beneficiary was 
employed abroad and would be employed in the United States in a qualifying managerial or executive 
capacity. 
EAC 01 115 52175 
Page 7 
On appeal, the petitioner asserts that the director failed to consider the response to the RFE in its entirety. 
While the director's statements in the decision suggest that the petitioner's response dated January 3 1, 2002 
may not have been considered, is not clear what remedy would be appropriate beyond the appeal process 
itself. The petitioner has in fact supplemented the record on appeal, and therefore it would serve no useful 
purpose to remand the case simply to afford the petitioner the opportunity to supplement the record with new 
evidence. Moreover, even if the director had considered the statement that was submitted by the petitioner 
beyond the allowed 12-week period, as noted above, the petitioner failed to provide much of the requested 
evidence with regard to the beneficiary's proposed employment. As such, regardless of the director's 
inadvertent oversight in not considering some of the petitioner's submissions, an adverse decision was 
warranted based on the petitioner's failure to establish its eligibility for the benefit sought. 
The petitioner argues that CIS'S prior approval of the petitioner's nonimmigrant petition effectively 
established the petitioner's eligibility for the immigrant benefits sought in the present matter. This argument 
is entirely without merit. 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. See §$ 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 
1 10 1 (a)(44). 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: $9 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see 
also $316 of the Act, 8 U.S.C. $ 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 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 I- 140 immigrant petitions after approving prior nonimmigrant I- 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 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant new office petition was 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 (Cornm. 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). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a distnct court. Even if a senice 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. Louisl:ana 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). 
The petitioner's assertion that the director never requested information regarding the nature of the 
beneficiary's proposed employment in the United States is also baseless, as the second page of the RFE 
EAC 01 115 52175 
Page 8 
clearly instructs the petitioner to provide a definitive list of duties and the number of hours attributed to each 
duty. Thus, the petitioner's assertion is contradicted by the plain language of the RFE. 
In examining the executive or managerial capacity of the beneficiary, CIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. tj 204.5Cj)(5). In the present matter, the petitioner has provided no 
information regarding the duties performed by the beneficiary abroad nor has the petitioner provided evidence 
that the beneficiary was employed by the foreign entity as claimed. With regard to the beneficiary's proposed 
employment, the only specific duties attributed to the beneficiary are operational tasks and are of a non- 
qualifying nature. As the petitioner has failed to specifically state which duties consume the primary portion 
of the beneficiary's time, the AAO cannot conclude that the beneficiary would refiain and/or be relieved from 
primarily performing non-qualifying tasks. 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 International, 19 I&N 
Dec. 593, 604 (Comm. 1988). The remainder of the petitioner's description is comprised of vague statements, 
which primarily paraphrase portions of the definition of managerial capacity. Furthermore, based on the 
petitioner's staffing composition at the time the Form 1-140 was filed, it is highly unlikely that the petitioner 
was able to relieve the beneficiary from having to primarily perform duties of a non-qualifying nature. 
Accordingly, the record as presently constituted is not persuasive in demonstrating that the beneficiary was 
employed abroad and would be employed in the United States in a primarily managerial or executive 
capacity. 
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). Therefore, based on the additional grounds of ineligibility as discussed above, 
this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afyd, 345 F.3d 683. 
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. Cj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.