dismissed EB-1C Case: Hoisting Equipment

(b)(6)
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigration Service: 
Office of Admini s1ra1ive Appeals 
20 Massa chu setts Ave. , N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OFFICE: TEXAS SERVICE CENTER FILE: 
SEP 2 7 2013 
INRE: Petitioner : 
Beneficiary : 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions . If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~!::~ 
Chief , Administrative Appeals Office 
www.uscis.goY 
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DISCUSSION: The Director, Texas Service Center, denied the preference visa pet1t1on. The 
director dismissed the petitioner's subsequent motion to re-open and/or reconsider. The 
Administrative Appeals Office (AAO) rejected the petitioner's subsequent appeal as improperly 
filed. The matter is now before the AAO on a motion to reopen and reconsider. The AAO will 
withdraw its previous decision to reject the appeal and re-open it to consider the merits of the 
appeal. The appeal will be dismissed. 
The petitioner filed this immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1153(b)(l)(C). The petitioner, a Florida corporation, claims to be a subsidiary of 
located in Venezuela. The petitioner specializes in the distribution, advising, sales, service, 
repair and reconstruction of hoisting equipment. It seeks to employ the beneficiary as its "Director 
Manager." 
In support of the Form I-140 the petitioner submitted a letter dated May 10, 2011 that contained 
relevant information pertaining to the beneficiary's prior foreign employment, proposed 
employment, and the qualifying relationship between the petitioner and the foreign employer. The 
petitioner also provided supporting evidence in the form of corporate, business, and financial 
documents pertaining to the beneficiary's foreign employer and the petitioner. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant 
approval. The director issued a request for evidence (RFE) dated October 11, 2011 informing the 
petitioner of various deficiencie s. The petitioner was instructed to provide stock certificates, a stock 
ledger and related information to establish that it has a qualifying relation ship with the beneficiary 's 
foreign employer. The petitioner was instructed to provide a more detailed job description 
pertaining to the beneficiary's proposed position as well as an organizational chart depicting the 
beneficiary's subordinates, their job titles,· job duties, and respective educational levels. The 
director requested the same evidence to establish that the foreign entity employed the beneficiary in 
a qualifying managerial or executive capacity. 
After considering the petitioner's response, the director determined that the petitioner failed to 
establish: (1) that the foreign entity and the petitioning entity have a qualifying relationship; (2) 
that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity; and (3) that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity. Specifically , with respect to the qualifying relationship, the director determined that the 
petitioner's evidence, including tax returns, did not support the petitioner's claim that it is a 
subsidiary of the foreign entity or otherwise establish an affiliate relationship between the two 
compames. 
The petitioner submitted a motion to reopen and/or reconsider the director's March 6, 2012 
decision. In support of the motion, the petitioner submitted several document s including an IRS 
Form 1120X, Amended U.S. Corporation Income Tax Return for 2010 dated July 10, 2012. The 
director determined 
that the petitioner had not met the requirement s to reopen the decision; 
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however, the director provided a substantive discussion of the issues in an opinion dated June 26, 
2012. 
The petitioner appealed the denial and the appeal was rejected as improperly filed because the 
petitioner did not sign the I-290B, rather the beneficiary appeared to sign the I-290B on his own 
behalf and could not be recognized as an affected party to the proceeding. In consideration of the 
petitioner's current motion to reopen, the AAO will consider the appeal and acknowledges the 
beneficiary's intent to properly file the appeal as an officer of the petitioning company. 
On appeal, counsel asserts that the director erred in questioning the validity of the petitioner 's 
revised tax return because "[a]ll evidence show that the company did not falsify any of its tax 
papers but all applications and amendments have been properly filed with the USCIS." Further , 
counsel asserts that the perceived inconsistencies questioned by the director were the result of mere 
typographical errors. In addition, with respect to the beneficiary's proposed employment capacity, 
counsel submits an updated position description and a current organizational chart for the 
petitioning company. 
I. The Law 
Section 203(b) of the Act states, in pertinent part: 
(1) Priorit y Workers. -- Visas shall first be made available ... to qualified imm igrants 
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 a lien's application 
for classificat ion and admission into the United States under this subparagraph, has 
been emplo yed 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 executiv es or 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliat e 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 stateme nt which indicate s that the alien is to be employed in the United States 
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in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
II. Qualifying Relationship 
The first issue addressed by the director is whether petitioner has established that it has a qualifying 
relationship with the beneficiary's foreign employer. To establish a "qualifying relationship" under 
the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the 
proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as 
a "parent and subsidiary" or as "affiliates." See generally § 203(b)(l)(C) of the Act, 8 U.S.C. § 
1153(b)(l)(C); see also 8 C.P.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and 
"subsidiary." 
The regulation at 8 C.P.R . § 204.5(j)(2) states in pettinent part: 
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 Sqme 
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. 
The petitioner asserts that it is 100% owned by the foreign employer, a Venezuelan 
company. As part of the initial I-140 petition, the petitioner provided its Articles of Incorporation , 
dated July 1, 2003 showing that the petitioner was authorized to issue up to 500 common shares of 
its stock having a $1.00 par value per share. The articles further state that the company would 
initially have two directors identified as the beneficiary an The petitioner 
provided evidence that on September 1, 2005, it adopted two amendments to its Articles of 
Incorporation: (1) a change of the company's name as currently reflected; and (2) an appointment of 
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two new members of the board of directors, specifically as president and 
as vice-president. In support of the petitioner's assertion regarding its 
shareholders, the petitioner submitted stock certificate No. 01 issued on October 11, 2005 and 
indicating that the company issued "1 00%" of its shares of stock to the foreign employer, 
(sic). The space for the number of shares at the top right comer of the certificate remained 
unfilled and the secretary's signature was not affixed. The certificate was signed by the beneficiary 
as "president." No additional share certificates were provided. 
The petitioner provided its Internal Revenue Service (IRS) Form 1120, U.S. Corporation Income 
Tax Return for 2009 with Schedule E, Compensation of Officers, that indicated the beneficiary and 
each owned 50% of the company's common stock and 50% of the company's 
preferred stock. The petitioner's Schedule K, line 4 indicated that the company was not owned by a 
foreign corporation and Schedule G indicated that wned 49% of the company's 
stock. The petitioner's Form 1120 for 2008 did not include a Schedule E or G, however Schedule K 
included an annotation that the company was not owned by a foreign corporation. 
In the director's RFE, he noted that the petitioner claimed it was owned 100% by the foreign 
employer but the petitioner's federal tax returns indicated otherwise. Therefore, the director 
requested additional evidence to resolve the inconsistency. 
In response to the RFE, the petitioner reiterated that the foreign employer , was the 100% 
owner of the petitioning company. The petitioner referred to "Annex 2" which contained a copy of 
stock certificate No. 1. Once again and in contradiction to the previous assertion, in Annex 1 to its 
RFE response the petitioner included a copy of its IRS Form 1120 for 2010, which, at Schedule E 
and Schedule G, indicated that the beneficiary and the beneficiary's father each own 50% of the 
petitioner 's stock. 
The director denied the petition, in part, based on a finding that the petitioner failed to establish that 
it has a qualifying relationship with the foreign entity. 
The petitioner filed a motion to reopen or reconsider the decision. The petitioner submitted a 
statement dated March 30, 2012 reiterating that the petitioner is 100% owned by the foreign 
employer, thus establishing a qualifying parent-subsidiary relationship. The 
petitioner explained that the notations on the petitioner's 2010 tax return indicating that the 
beneficiary and his father owned 50% each of the petitioning entity were made in error. The 
petitioner offered no reason for the error and simply referred to it as a "mistake." The petitioner 
submitted a revised Form 1120 for 2010. Further, in support of its explanation of its mistake, the 
petitioner submitted a document entitled "Minutes of the Special Meeting of Directors" dated March 
12, 2012, that states "the form 1120 US Corporate Income Tax Rerun [sic] for the year 2010 
occurred a mistake regarding the ownership of the corporation. The correct allocation of ownership 
is 100 percent (100%) of the shares belonging to a foreign entity in Maracaibo -
Venezuela." The bqdy of the document indicated that Vice-President was present 
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as one of the directors. The document was signed by 
as secretary. 
NON-PRECEDENT DECISION 
as president and 
After reviewing the documentation; the director noted that was improperly referred 
to as both the vice president and secretary in different parts of the "minutes" document. 
Additionally , the director found that the changes to a previously filed tax return must be made 
through amendments and must actually be filed with the Internal Revenue Service (IRS) to be valid. 
For these reasons, and others, the director found that the petitioner failed to meet the requirements 
to reopen the matter. 
On appeal, the petitioner submitted several documents including a Form 1120X Amended U.S. 
Corporation Income Tax Return for 2010 that was stamped "RECEIVED" by the IRS on July 12, 
2012. The document appears to be validly filed; however, since it was filed after the director's June 
26, 2012 decision on the motion, the director did not consider the document. The petitioner asserts 
that USCIS incorrectly questioned the validity of the income tax return that was properly filed with 
the IRS. Additionally, counsel for the petitioner submits another version of the minutes of the 
special meeting of shareholders, now dated July 2012, a list of current employees, a new 
organizational chart and another duty description for the beneficiary. 
Upon review of all evidence submitted, the petitioner has not established that it has a qualifying 
relationship with the foreign entity. 
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 United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientolog y International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems , Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa 
petition, ownership refers to the direct or indirect legal right of possession of the assets of an entity 
with full power and authority to control; control means the direct or indirect legal right and 
authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See 
Matter o.f Siemens Medical Systems, Inc., supra . Without full disclosure of all relevant documents, 
USCIS is unable to determine the elements of ownership and control. 
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The regulations specifically allow the director to request additional evidence in appropriate cases. 
See 8 C.F.R. § 204.5U)(3)(ii). As ownership is a critical element of this visa classification, the 
director may reasonably inquire beyond the issuance of paper stock certificates into the means by 
which stock ownership was acquired. As requested by the director, evidence of this nature should 
include documentation of monies, property, or other consideration furnished to the entity in 
exchange for stock ownership. Additional supporting evidence would include stock purchase 
agreements, subscription agreements, corporate by-laws, minutes of relevant shareholder meetings, 
or other legal documents governing the acquisition of the ownership interest. 
In this matter, the petitioner presented a single stock certificate to establish that it was wholly­
owned by the foreign employer. The petitioner provided no stock ledger of stock registry in order 
to establish ownership of the company despite a specific request by the director. 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). 
The stock certificate presented by the petitioner, itself raised questions that the petitioner did not 
resolve. The company was incorporated in July 2003 but the sole stock certificate provided was not 
issued until over 26 months later in October 2005. The only stock certificate submitted by the 
petitioner indicates that )Wns 100% of the company but the certificate is incomplete on its 
face since the share block is blank and the secretary's signature is not affixed. These shortcomings 
may not be fatal to the authenticity of the stock certificate but the beneficiary's signature as 
"president" of the company is also problematic. Based on the amended articles of incorporation the 
president of the company on October 5, 2005 was and not the beneficiary. 
Compounding the uncertainty of the stock certificate is the petitioner's repeated assertions on its tax 
returns that the beneficiary and share ownership of the petitioner's stock. The 
petitioner attempts to explain this inconsistency by claiming that the ownership was reported in 
error. Nevertheless, the petitioner offers no reasonable explanation to account for the mistake nor 
does the petitioner attempt to explain why the same or similar assertions regarding ownership were 
made on prior tax returns. The petitioner did not submit amended tax returns for the years 2008 or 
2009. The petitioner has not adequately explained these inconsistencies. 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 ofHo, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
Furthermore, at the time it filed the initial motion to reopen this matter, the petitioner submitted a 
revised version of its Form 1120 for 2010, but failed to provide evidence that it had actually filed an 
IRS Form 1120X to officially amend the tax return. As the petitioner did not file a properly 
amended Form 1120X until July 12, 2012 thus the director properly dismissed the motion to reopen 
this matter on June 26, 2012. 
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Additionally, in order to bolster its assertion that the tax return was a "mistake" the petitioner 
submitted "Minutes of the Special Meeting of the Board of Directors" held on March 12, 2012 in 
which the petitioner's tax return for 2010 was discussed and determined to be mistaken regarding 
the ownership of the company . The minutes stated "[t]he correct allocation of ownership is 100 
percent (100%) of the shares belonging t a foreign entity in Maracaibo- Venezuela." 
However, the minutes fail to offer any insight into the claimed error or explanation for the error. 
Furthermore, the authenticity of the substance of the minutes are diluted upon review of a second 
document reflecting a "Minutes of the Special Meeting of the Board of Directors" held on July 12, 
2012, in which the exact same issue was apparently discussed and noted by the board. The 
documentation is insufficient to explain the "mistake." 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'r 1998) (citing Matter of Treasure 
Craft of California , 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Alternatively, though not claimed by the petitioner, the director stated that the petitioner did not 
establish a qualifying affiliate relationship with the foreign employer. The foreign employer was 
held, in part, by the beneficiary's father and other family members. However , an affiliation has not 
been established in this matter because the evidence does not establish that the beneficiary's father 
owns a majority of the company or has control and authority over the company. Further, there is no 
evidence to establish that the beneficiary's father owns a majority interest and exercises control 
over both the petitioner and the foreign employer such that the companies could be deemed 
affiliates. 
Accordingly, the petitioner failed to establish that the petitioning entity and the foreign entity have a 
qualifying relationship. 
III. Employment in a Managerial or Executive Capacity 
The second issue addressed by the director is whether the petitioner established that the beneficiary 
would be emplo yed in the United States in a qualifying managerial or capacity. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A), provide s: 
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 organi zation; 
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(iii) if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as 'Nell 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 emp loyees 
supervised are professional. 
Section 10l(a)( 44)(B) of the Act, 8 U.S .C. § ll01(a)(44)(B), provid es: 
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 compo nent or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitud e in discretionary decision-mak ing; and 
(iv) receives only general supervision or direction from higher level 
execut ives, the board of directors , or stockholders of the organization. 
In reviewing the beneficiary's employment capacity, the AAO gives primary cons ideration to the 
petitioner 's descriptio n of the beneficiary's proposed position, as a detailed description of the 
beneficiary's actual daily tasks tends to reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, ll08 (E.D.N.Y. 1989), qfj'd, 905 F.2d 41 (2d. Cir. 1990). USCIS 
also gives ample consideration to the job duties of the beneficiary's subordinate employees , the 
nature of the petitioner's business, the employment and remuneration of employees, and any other 
facts that contribu te to a comprehensive understanding of the beneficiary's actual role in a business. 
In the present matter, the petitioner has not established that it will employ the beneficiary in a 
qualifying managerial or executive capacity. The petitioner asserted that the beneficiary's main 
objective as director/manager would be to "direct and coordinate ali operations required to meet the 
datelines of a determ ined project based on the production and financi al capacity of the comp any. At 
the same time, establish commercial connections with customers in order to determine service 
requirements." The petitioner further described the beneficiary's duties and separated them into ten 
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Page 10 
functions with 10% of the beneficiary's time allocated to each of the ten functions. Duties assigned 
to the beneficiary included "Establish and Coordinate delivery and material supply," "[p]repare the 
offers, estimating costs and final review prior (sic) its submission to the customers," and "[cl]irect 
and establish data and consulting to sales and services." Another function required the beneficiary 
to "verify the quality of the work." The beneficiary was also required to "[d]evelop requisitions for 
all the required materials to perform a service, as well as for equipment requested by our customers, 
implementing the respective procedures related to purchases of equipment , materials and product s, 
as well as those for evaluation of subcontractors and suppliers" and "[e]nsure the proper 
performance of the equipment." 
In response to the RFE the petitioner asserted that the beneficiary "spends 100% of her [sic] time in 
qualifying functions" however, based on the duties described above the beneficiary spends 
potentially 60% of his time engaged in tasks necessary to produce a product or provide services. 
Notwithstanding the petitioner's claims, the description of the beneficiary' s proposed employment 
indicates that a considerable portion of the beneficiary's time would be allocated to daily 
operational tasks. While the AAO acknowledges that no beneficiary is required to allocate 100% of 
his or her time to managerial- or executive-level tasks, the petitioner must establish that the non­
qualifying tasks the beneficiary would perform are only incidental to th e proposed position . An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology International, 19 I&N Dec . 
593, 604 (Comm. 1988). 
The petitioner failed to address this issue on its motion to reopen and reconsider. On appeal , 
however, counsel for the petitioner did not address the matter but provided a new duty description 
for the beneficiary listing ten completely different responsibilities with no corresponding allocation 
of time. On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change 
a position's title, its level of authority within the organizational hierarchy , or the associated job 
responsibilities. The 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'r 1978). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements . See 
Matter of1zummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
With respect to the petitioner's staffing, the petitioner claimed to employ eight individuals. 
According to the petitioner's organizational chart there were fom d irec:t subordinates to the 
beneficiary, including administrative assistant. sales manager, 
engineering department, and an unidentified extern al accountant. The chart 
identified "sales" and "technical dept" subordinate to the sales 
manager and "master diesel mechanical" subordinate to 
the engineering department. The petitioner provided duty descriptions for each worker. 
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age 1 I 
Regarding the beneficiary's direct subordinates, the AAO concurs with the director's determination 
that an "external" accountant is not the petitioning entity's employee but rather an independent 
contractor who would not be available to relieve the beneficiary from performing non-managerial or 
non-executive duties . The petitioner asserted that _ as administrative assistant , 
supervised no one but required a degree and the petitioner provided evidence of his educational 
credentials. The petit ioner also asserted that was a full-time professional employee 
in tax year 2011 yet the petitioner ' s chart depicts that she earned $12.00 per hour for 1370 hours 
totaling $16,707. This employee appears to have been employed part-time in 2010 and 2012 as 
well. 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 
ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
According to the organizational chart, upervised the technical dept. and part-time 
employee, in sales. As a part-time employee, worked only 960 
hours raising the question of who actually performed the crucial sales role on a full-time basis. 
Finally, although the petitioner asserted that required a degree and presented 
evidence to establish the fact, the petitioner also asserted that is responsible for supervising the 
"entire staff of the company related to quality." 
As part of the initial petition, the petitioner stated that it intended to hire one marketing manager yet 
it is unclear who was handling the marketing responsibilities pending that hire . A visa petition may 
not be approved based on speculation of future eligibility or after the petitioner or beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm'r 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). 
As required by section 101 (a)( 44 )(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, users must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. To establish that the reasonable needs of the organization justify the beneficiary's 
job duties, the petitioner must specifically articulate why those needs are reasonable in light of its 
overall purpose and stage of development. In the present matter, the petitioner's evidence 
established it employed four full time and three part-time employees at the time the petition was 
filed. The petitioner provided numerous invoices and billing documents reflecting the petitioner ' s 
involvement with routine vehicle type repairs yet the petitioner presents few employees available to 
perform the work. The petitioner did not submit evidence that it employed any subordinate staff 
members who would perform the actual day-to-day, non-managerial operations of the company. 
Based on the petitioner's representations, it does not appear that the reasonable needs of the 
petitioning company might plausibly be met by the services of the beneficiary as director/manager 
and two full time supervisors, one in engineering and one in sales, who have a combined staff of 
one full time mechanic and two part-time employees. Regardless, the reasonable needs of the 
petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the 
claimed managerial or executive duties. The petitioner must still establish that the beneficiary is to 
be employed in the United States in a primarily managerial or executive capacity, pursuant to 
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.t'age lL 
sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established 
this essential element of eligibility. 
On appeal, the petitioner provide a new organizational chart and provided a list of five "current" 
full-time employees and two part-time employees; however, this information does not reflect the 
complement of employees employed at the time the petition was filed and is, therefore, not relevant 
to this appeal. 
The AAO notes that the petitioner states in the May 10, 2011 letter that since the beneficiary 
entered the U.S. in Jan uary 2008 he has performed in his current position as a director manager for 
the petitioner. However, the record indicates that the petitioner previously claimed that the 
beneficiary worked for the petitioner in the role of Sales Manager performing duties very similar to 
those now claimed for the petitioner's director manager position. 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 ofHo, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
The petitioner maintains the burden of establishing that the beneficiary would more likely than not 
primarily perform tasks within a qualifying managerial or executive capacity. Given the numerou s 
deficiencies discussed above, the AAO finds that neither the beneficiary' s job description nor the 
petitioner's organizational composition at the time of filing adequately establish that the petitione r 
would be able to relieve the beneficiary from having to allocate the primary portion of his time to 
non-qualifying operational tasks . Therefore , on the basis of this conclu sion, the instant petition 
cannot be approved and the appeal will be dismissed. 
IV. Employment Abroad in a Managerial or Executive Capacity 
The third issue addressed is whether the petitione r established that the beneficiary was employ ed by 
the foreign entity in a managerial or executive capacity. The petition er has not address ed this issue 
on appeal. 
The petitioner indicated that the foreign entity employed the beneficiary as its operations manager. 
Preliminarily, the petitioner provided a list of nine duties with a percentage of time allocated to each 
duty. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and a 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager ," the statute plainly states that a "first line supervisor is not considered to be acting 
in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
214.2(l)(l)(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary must also 
have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). 
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. § 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 in managing the essential function, 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. See 8 C.F.R. § 
204.5U)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the 
function. 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 Boyang, Ltd. v. I.N. S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 
593, 604 (Comm'r 1988). 
In this matter, the beneficiary's main objective is to: 
Supervise the proper structure of the system of quality, ensuring its implementation 
and effective maintenance as well as to encourage the commitment of each one of 
the members of the organization through the development of work methods that 
ensure the production of reliable products that will meet the expectations of our 
customers. 
According to the description, the beneficiary supervises the "quality manager and all related to the 
quality system." The foreign entity's organizational chart depicts two employees or departments 
subordinate to the beneficiary, one labeled "Sales and Service" and one labeled "Technical Advisor" 
and staffed by It does not depict a quality manager, despite the petitioner's claims 
that this position had been under the beneficiary's supervision. Further, notwithstanding the 
structure depicted in the chart, the narrative duty description for states that he 
reported to the general manager, and not to the beneficiary. Further, while a duty description was 
provided for the Sales and Service position, the position is depicted as vacant. Therefore, the 
evidence shows that the beneficiary had no subordinates to manage and no staff to perform the non­
qualifying duties associated with his area of responsibility. To the extent that the beneficiary had no 
subordinate employees to perform any of the non-managerial or non-executive duties, the petitioner 
failed to establish that the beneficiary had a staff sufficient to relieve him from performing non­
qualifying duties. The petitioner has not provided evidence that the beneficiary managed personnel 
or an essential function. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
Upon review, the petitioner did not establish that the beneficiary was employed with the foreign 
entity in a qualifying managerial or executive capacity. Accordingly, for this additional reason the 
appeal will be dismissed. 
V. Prior Approvals and Conclusion 
It must be noted that many r-140 immigrant petitions are denied after users approves prior 
nonimmigrant r-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. of Justice, 48 F. Supp. 2d 22 (D.D.e. 1999); Fedin Brothers 
Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the consequences of an approved 
petition, there is a significant difference between a nonimmigrant L-1A visa classification, which 
allows an alien to enter the United States temporarily, and an immigrant E-13 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. §§ 1154 
and 1184; see also§ 316 of the Act, 8 U.S.e. § 1427. Because USers spends less time reviewing 1-
129 nonimmigrant petitions than r-140 immigrant petitions, some nonimmigrant L-lA petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 
C.F.R. § 214.2(l)(l4)(i)(requiring no supporting documentation to file a petition to extend an L-lA 
petition's validity). 
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 r&N Dec. 593, 597 (eomm'r 1988). It would be absurd to 
suggest that users or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th eir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, 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.), ajj'd, 248 F.3d 1139 (5th eir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 r&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.