dismissed EB-1C Case: Handicrafts

US. Department of fFomeiand Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY 
 @ U. S. Citizenship 
and Immigration 
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Office: CALIFORNIA SERVICE CENTER Date: MAR 2 8 2007 
WAC 05 246 5 1664 
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 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. 
/-----y. + 
~obedann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation claiming to be a distnbutor of handicrafts manufactured abroad. It 
seeks 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 
determined that the beneficiary would not be employed by the U.S. petitioner in a managerial or executive 
capacity and denied the petition. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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 primary issue is whether the petitioner established that it would employ the beneficiary in the United 
States in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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, hnctions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated August 23, 2005, which contained the 
following percentage breakdown of the beneficiary's responsibilities: 
Plan and set goals for [the petitioner] in both Nepal and the U[.]S[.] so as to grow our 
company in size and profitability. Develop and regularly re-evaluate our marketing plan 
for North America specifically, [sic] based on changes in market conditions and [the 
petitionerl's resources in Nepal and the U[.]S[.], and for exports worldwide. The current 
draft of our marketing plan forms part of our [blusiness [pllan . . . . 
 10% 
Lead management of our company-including both [the petitioner] and [the foreign parent 
entity]-in order to ensure continuity of quality production, marketing appropriateness and 
timely delivery of our goods. This requires contact with Dinesh and Niresh Shrestha 
several times per week. 15% 
Establish [the petitioner] as a wholesale distributorship and retail outlet by obtaining local 
contracted services[.] 5% 
Establish sale and tax procedures for [the petitioner], insuring [sic] compliance with import 
and tax regulations. Become familiar with the relevant regulations by working with 2 
accountants . . . to ensure that we are fully advised and compliant. 5% 
Promote [the petitionerl's business and products at trade shows to generate wholesale sales 
and enhance [the petitionerl's customer base. 40% 
Gather customer demographics and other marketing data to focus our efforts efficiently 
(This is part of other duties, and is not counted as separate time). 
Enter into contracts with other wholesalers and retailers in the U[.]S. (this is exclusive of 
contracts made at trade shows)[.] 15% 
Negotiate with U[.]S[.] designers to inject new ideas and sophistication in [the petitionerl's 
jewelry collection and marketing. 10% 
The petitioner also provided a lengthy list of business decisions the beneficiary has made in an effort to 
illustrate the beneficiary's degree of discretionary authority with respect to all aspects of the business. The 
petitioner stated that the beneficiary has future plans to hire additional employees to assist with sales and 
order fulfillment, but currently supervises one director and one manager, both located abroad. The 
organizational chart submitted as a supporting document shows the beneficiary as the executive director of 
the U.S. petitioner and its claimed foreign affiliate. The chart indicates that, aside from the beneficiary, the 
U.S. petitioner employs two corporate officers. All other employees named in the chart are part of the 
personnel structure of the foreign entity over which the beneficiary purportedly continues to preside. 
Additionally, the petitioner provided a list of trade shows that took place from January through December of 
2005. The list is accompanied by agreements signed by the beneficiary for trade show space, suggesting that 
the beneficiary attended trade shows to sell the products manufactured abroad. 
On February 24, 2006, Citizenship and Immigration Services (CIS) issued a request for additional evidence 
(RFE) instructing the petitioner to provide a detailed description the beneficiary's typical day of work. The 
petitioner was also asked to provide its quarterly wage statements. It is noted that the instructions did not 
specify which quarterly statements the petitioner was expected to provide. That being said, 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. 45, 49 (Cornrn. 
1971). Therefore, despite the RFE's lack of clarity regarding which quarterly wage reports to submit, 
precedent case law provides sufficient guidance, suggesting that only those documents that establish the 
petitioner's personnel structure at the time the Form 1-140 was filed are relevant to a determination of the 
petitioner's eligibility to classify the beneficiary as a multinational manager or executive. 
In response, counsel submitted a letter dated May 18, 2006, asserting that the number of employees 
supervised does not determine the petitioner's eligibility for the benefit sought and urged CIS to consider the 
Page 5 
petitioner's reasonable needs. While counsel's statement is largely reflected in 8 C.F.R. § 204.5Cj)(4)(ii), there 
is no statute or regulation that suggests the petitioner's reasonable needs supersede sections 10 1 (a)(44)(A) and 
(B) of the Act, which require that the duties of the prospective multinational manager or executive be 
primarily within a qualifying managerial or executive capacity. In the present matter, counsel seemingly 
suggested that the beneficiary's performance of primarily non-qualifying operational tasks should be 
overlooked in light of the petitioner's current needs. Counsel provides no legal basis for this interpretation of 
the relevant regulation. 
Counsel further stated that the petitioner's primary goal is to perform market research, contact prospective 
customers, negotiate contracts for the sale of the foreign affiliate's merchandise, and maintain both entities 
under the beneficiary's leadership. Counsel also stated that approximately 91% of the petitioner's work force 
is located abroad, including the beneficiary's two direct subordinates, one possessing an executive position 
title and the other possessing a managerial position title. 
In a separate document, dated May 17, 2000, the beneficiary, on behalf of the petitioner, provided a 
breakdown of his typical day of work, claiming that his duties include negotiating contracts with wholesale 
companies by phone or by email. The beneficiary stated that he meets with three to five customers on 
average daily and that each meeting can take up to 30 minutes if done by phone. The beneficiary did not 
specify the frequency of in-person meetings or the length of such meetings. He also stated that he initially 
meets directly with potential customers at trade shows and that subsequent meetings take place for the 
purpose of negotiating with customers interested in placing orders for the petitioner's merchandise. Based on 
the trade show schedule submitted with the Form 1-140, the petitioner is engaged in trade shows 2-3 times per 
month for days at a time. As such, it appears that the primary portion of the beneficiary's job is spent 
attending trade shows to advertise and market the petitioner's products, although the record lacks sufficient 
information to determine more precisely how many hours in an average week are spent at the trade shows. 
The beneficiary stated that a component of the negotiation involves meeting with an attorney who advises the 
beneficiary on various business matters. 
The beneficiary stated that approximately one hour and fifteen minutes daily is spent communicating with his 
overseas subordinates. Another component of the beneficiary's job is researching promoters or trade shows. 
The beneficiary stated that he allots one hour every few days to such research and at least two hours daily, or 
25% of his week, researching jewelry trends, which involves consulting a fashion designer, looking through 
catalogues, and visiting various web sites on the internet. An additional 10-30 minutes each day is spent 
checking the bookkeeper's entries to ensure accuracy with the petitioner's accounts and while the beneficiary 
also stated that he trains his overseas subordinates during their respective one-month visits to the United 
States, the beneficiary did not specify the fkequency of such visits or the length of the actual training sessions. 
Therefore, it is impossible for the AAO to quantify how much time the beneficiary will spend on this task on 
a weekly or even monthly basis. Finally, the beneficiary explained that the petitioner has no tax withholding 
forms for its employees since they are located in Nepal, the site of the overseas business. 
Regardless, based on information provided, the director issued a decision dated May 3 1,2006 concluding that 
the information provided by the petitioner regarding the beneficiary's prospective job duties suggests that the 
beneficiary would not be employed in a qualifying managerial or executive capacity. The director further 
stated that the beneficiary would not only oversee, but would carry out the petitioner's operational tasks on a 
daily basis. 
On appeal, counsel argues that the director's decision should be reversed because of his abuse of discretion. 
More specifically, counsel states that the director failed to provide the petitioner with a well-reasoned 
discussion of the factors that contributed to the adverse decision. Counsel further states that the director's 
failure to specifically address documentation provided by the petitioner throughout this proceeding suggests 
that the director failed to consider the relevant evidence. Counsel's argument, however, is without merit. 
While the director's decision does not include a detailed discussion of the beneficiary's job description, it 
contains sufficient information adequately conveying the basis for the denial, i.e., the lack of a support staff to 
relieve the beneficiary fiom having to primarily perform non-qualifying duties on a daily basis. There is no 
evidence that the director did not consider the relevant information. Rather, the fact that the director 
specifically noted that the petitioner submitted a thorough job description for the beneficiary strongly suggests 
that the relevant information was considered. 
Counsel further asserts that the director failed to comply with section 101(a)(44)(C) of the Act, which 
requires that the petitioner's reasonable needs be considered and proceeds to contrast the instant case from 
other cases where the AAO found deficient job descriptions and dismissed appeals on that basis. However, 
neither of counsel's points overcomes the director's denial. First, counsel's interpretation of the reasonable 
needs provision is erroneous. As previously stated, there is no statute, regulation, or precedent case law that 
suggests that the beneficiary's performance of primarily non-managerial or non-executive tasks is acceptable 
so long as the petitioner's reasonable needs require the beneficiary to do so. Rather, the reasonable needs 
provision provides guidelines so that adjudicators do not simply approve petitions based only on a petitioner's 
staffing levels. The AAO acknowledges the existence of petitioning organizations where an individual is 
relieved of having to primarily perform non-qualifying duties even if the petitioner has a small support staff. 
However, a determination of the petitioner's eligibility cannot be made without first considering the actual 
duties performed by the beneficiary. 
Second, counsel's discussion of appeals previously dismissed by the AAO is irrelevant to the case at hand. 
Counsel suggests that the petitioner's compliance with CIS'S request for a detailed job description sufficiently 
distinguishes the instant petitioner fiom those whose appeals had been dismissed. While there is clearly a 
distinction between this petitioner and others who failed to provide sufficient information, counsel's apparent 
assumption that providing an adequate job description merits approval of a petition is incorrect. Providing a 
detailed job description is crucial, as it enables the AAO to conduct a thorough analysis of the relevant 
information and ultimately make an informed decision regarding the petitioner's eligibility. 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), affd, 905 F.2d 41 (2d. Cir. 1990). However, providing sufficient information in no way 
ensures a favorable outcome for the petitioner. 
Both statute and case law suggest that an employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). In the present matter, the petitioner has provided a thorough description of the 
beneficiary's duties. However, the AAO cannot overlook the fact that the beneficiary is the petitioner's sole 
U.S. employee and that the primary portion of his time has been and would be spent carrying out the 
petitioner's essential function, i.e., selling the merchandise of its claimed overseas affiliate. Furthermore, the 
petitioner repeatedly stated that the beneficiary directly oversees the work of one executive and one 
managerial employee each of whom supervises his own staff of subordinates. However, the petitioner has 
also maintained that its support staff is located abroad and is, in fact, employed by the foreign affiliate. 
The record shows that the petitioner was established as a corporation in California. Thus it is a separate entity 
from the one located abroad, despite any parent-subsidiary relationship. The fact that the beneficiary 
supervises employees who work for another entity indicates that a significant portion of the beneficiary's time 
is spent providing services for an entity other than the petitioner. Therefore, even if the petitioner were able 
to establish that the beneficiary's duties primarily involve supervising managerial or supervisory employees, 
such duties are not part of his proposed employment with the U.S. petitioner and would not be considered for 
the purpose of establishing the petitioner's eligibility. Contrary to counsel's assumption, the fact that the 
alleged support staff is located abroad does not contribute to an adverse finding. As stated above, the fact that 
the overseas staff is employed by an entity other than the petitioner precludes the AAO from considering the 
beneficiary's supervisory duties as part of his proposed employment with the U.S. petitioner. 
While counsel clarifies the $37,000 shown in the petitioner's 2004 tax return as payment of commission, 
counsel's assertions merely establish the beneficiary's employment with the petitioner, a fact that is not in 
contention and is not material either to the AAO's or the director's conclusions regarding the petitioner's 
eligibility. Despite counsel's interpretation of the denial, the director's statements concerning financial 
documentation submitted by the petitioner were merely observations and addressed the issue of a lacking 
support staff. 
Counsel also alters the petitioner's initial claim, asserting that the beneficiary's prospective employment falls 
under the definition of executive capacity as well as managerial capacity. In support of these new assertions, 
counsel offers the professional opinion of a professor and management expert. However, regardless of the 
credentials of the expert's testimony, there is no evidence that the professor's expertise is in the area of 
immigration law and the specific statute and regulations relevant in the present matter. Moreover, there is no 
evidence that the professor's opinions are based upon his direct knowledge of the duties carried out by the 
beneficiary. His opinion appears to be primarily based on claims put forth by the petitioner and as such must 
be supported by documentary evidence much like the remainder of the petitioner's claim. See Matter of 
SofJici, 22 I&N Dec. 158, 165 (Comm. 1 998) (citing Matter of Treasure Craft of Calfornia, 14 I&N Dec. 1 90 
(Reg. Comm. 1972)). 
Despite counsel's claims that the beneficiary exercises a high degree of discretionary authority and manages 
an essential function, the fact remains that the beneficiary primarily performs the tasks that comprise the 
essential sales function. Regardless of the petitioner's need for the beneficiary to continue to carry out these 
tasks and despite his key role in the petitioner's continued existence, anyone who carries out the tasks of an 
essential function, by definition cannot be deemed as someone who primarily performs qualifying managerial 
or executive tasks. See sections 10 l(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. at 604. As the petitioner has provided evidence establishing that the beneficiary does not primarily 
perform duties of a qualifying managerial or executive nature, this petition may not be approved. 
Furthermore, the record supports a finding of ineligibility based on at least one additional ground that was not 
previously addressed in the director's decision. Namely, 8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner 
must establish that it has been doing business for at least one year prior to filing the Form 1-140. The 
regulation at 8 C.F.R. 5 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods andlor 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 petitioner describes itself as a sales-based enterprise. However, 
despite the fact that the petitioner purportedly derives its revenue fkom the sale of merchandise, the record lacks 
evidence to establish that the petitioner has engaged in sales transactions on a "regular, systematic, and 
continuous" basis. See id. While the petitioner has provided documentation to show its presence at various trade 
shows to advertise the business, there is little evidence to show that the petitioner has sold its merchandise during 
the requisite 12-month period. As previously indicated, 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. at 165. 
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 identifjr 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. 200 I), 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 ground of ineligibility as discussed above, 
this petition cannot be approved. 
As a final note, 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 fj fj 10 1 (a)(44)(A) and 
(B) of the Act, 8 U.S.C. fj 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 nonirnrnigrant 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 5 316 of the Act, 8 U.S.C. 5 1427. 
In addition, each nonimrnigrant 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. Sava, 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 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). 
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 service center director had approved the nonimrnigrant 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). 
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, affd, 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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.