dismissed EB-1C Case: Import/Export

identify@ data deleted to 
prevent clearly unwarranted 
invasion of personal pdvw 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship -* 
and Immigration 1 L ,+ 
WAC 97 083 50236 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
obert P. Wiemann, Director 
Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, approved the employment-based visa petition. 
Following an interview and investigation performed in connection with the beneficiary's Form 1-485 
Application to Adjust Status, the director issued a Notice of Intent to Revoke and properly provided the 
petitioner thirty days during which to rebut the proposed revocation. The director subsequently revoked 
approval of the petition. The matter is now before the Administrative Appeals Office (MO) on appeal. The 
appeal will be dismissed. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California that is 
engaged in the import and export of stuffed animals and toys. The petitioner seeks to employ the beneficiary 
as its general manager. 
The director approved the employment-based petition on August 5, 1997. On February 17, 2005, the director 
issued a Notice of Intent to Revoke as a result of information obtained in connection with the beneficiary's 
1-485 application. The petitioner did not respond to the director's notice.' On April 29, 2005, the director 
revoked approval of the petition based on the petitioner's failure to demonstrate that: (1) the petitioning entity 
was doing business for at least one year prior to the filing of the immigrant petition; (2) the beneficiary had 
been employed abroad and would be employed in the United States in a primarily managerial or executive 
capacity; (3) a qualifying relationship exists between the foreign and United States entities; and (4) the 
petitioner has the ability to pay the beneficiary's proffered annual salary of $30,000. 
The petitioner's former counsel filed an appeal on June 23, 2005 requesting additional time within which to 
submit an appellate brief. The MO notes that the appeal was timely filed, as the record demonstrates that the 
director's decision to revoke approval was initially mailed to an incorrect address before being sent to the 
beneficiary on June 15, 2005. On September 26, 2005, the petitioner's new counsel submitted a letter and 
brief challenging the director's revocation of approval of the immigrant petition. Counsel cites section 205 of 
the Act, 8 U.S.C. 9 1155 (2003), stating that it restricts Citizenship and Immigration Services (CIS) fiom 
revoking approval of a petition after the beneficiary has departed for the United States. Counsel also contends 
that the prior approvals for an L-1A nonimmigrant visa demonstrate the beneficiary's eligibility for the 
classification requested herein. 
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 
' A review of the record reveals that due to a typographical error the director's Notice of Intent to Revoke was 
mailed to an incorrect address of the petitioner's former counsel. This issue, however, is moot, as the 
petitioner has submitted new evidence on appeal which will be considered herein. 
Page 3 
States under this subparagraph, has been employed for at least 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Following approval of an immigrant or nonimmigrant petition, the director may revoke approval of the 
petition in accordance with the statute and regulations. Section 205 of the Act, 8 U.S.C. 1155 (2005), 
states: "The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation 
shall be effective as of the date of approval of any such petition." 
Regarding "good and sufficient cause" and the revocation of an immigrant petition under section 205 of the 
Act, the Board of Immigration Appeals (BIA) has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582,590 (BIA 1988)(citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the 
issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. at 590. 
Notwithstanding the CIS burden to show "good and sufficient cause" in proceedings to revoke approval of a 
visa petition, the petitioner bears the ultimate burden of establishing eligibility for the benefit sought. The 
petitioner's burden is not discharged until the immigrant visa is issued. Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' Cir. 1984). 
The AAO will first address counsel's reference on appeal to Section 205 of the Act. In a recent opinion issued 
by the United States Court of Appeals for the Second Circuit, Firstland Int% Inc. v. Ashcroft, 377 F.3d 127 
(2d Cir. 2004), the court interpreted the third and fourth sentence of section 205 of the Act to render the 
revocation of an approved immigrant petition ineffective where the beneficiary of the petition did not receive 
notice of the revocation before beginning his journey to the United States. Firstland, 377 F.3d at 130. 
Counsel asserts that the reasoning of this opinion must be applied to the present matter and accordingly, CIS 
may not revoke the approval because the beneficiary did not receive notice of the revocation before departing 
for the United States, since he was already in the United States when the director issued the rev~cation.~ 
According to CIS records, the petitioner is located in California; thus, this case did not arise in the Second 
Circuit. Firstland was never a binding precedent for this case. Even as a merely persuasive precedent, 
moreover, Firstland is no longer good law. 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to this matter, section 
5304(c) of Public Law 108-458 amends section 205 of the Act by striking "Attorney General" and inserting 
"Secretary of Homeland Security" and by striking the final two sentences. Section 205 of the Act now reads: 
The Secretary of Homeland Security may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 1154 of 
this title. Such revocation shall be effective as of the date of approval of any such petition. 
Furthermore, section 5304(d) of Public Law 108-458 provides that the amendment made by section 5304(c) 
took effect on the date of enactment and that the amended version of section 205 applies to revocations under 
section 205 of the Act made before, on, or after such date. Accordingly, the amended statute specifically 
applies to the present matter and counsel's argument no longer has merit. 
The AAO will next consider the issue of whether the petitioning entity was doing business for at least one 
year prior to the filing of the instant petition. 
The term "doing business" is defined by the regulation at 8 C.F.R. 9 204.56)(2) as: 
[Tlhe 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. 
The petitioner filed the immigrant petition on March 3, 1997 and noted that the corporation had been 
established as an import and export company on November 30, 1995. In an appended letter dated January 16, 
1997, the petitioner explained that since its establishment, the corporation "has been engaged in the trading of 
furs, crafts [and] toys and many other items." The petitioner noted its gross annual income in the amount of 
* The Firstland opinion summarily overturned 35 years of established agency precedent. See Matter of Vilos, 
12 I&N Dec. 61 (BIA 1967). Counsel's arguments illustrate the illogical effects of the Second Circuit's 
reasoning: In the present matter, the beneficiary entered the United States as a nonimmigrant L-1A on 
January 1, 1995, approximately two years prior to the filing of the Form 1-140 immigrant petition and ten 
years prior to the revocation of the petition's approval. Accordingly, it was physically impossible for CIS to 
have notified the beneficiary of the revocation before he departed for the United States. In effect, counsel's 
interpretation of Firstland would have created a situation where any alien would have an irrevocable 
immigrant visa petition if the alien simply waited until after he or she arrived in the United States to file the 
petition. 
Page 5 
$237,992 for the year 1996, and referenced an accompanying balance sheet, which reflected the same. As 
evidence of its business operations in the United States, the petitioner submitted the following documentation: 
(1) Internal Revenue Service (IRS) Form SS-4, Application for Employer Identification Number; (2) a City of 
Los Angeles Tax Registration Certification issued on January 13, 1996; (3) a seller's permit; (4) State, Local 
and District Sales and Use Tax Return for March through November 1996; (5) an unaudited balance sheet as 
of November 30, 1996; (6) IRS Form 941, Employer's Federal Quarterly Tax Return for the three quarters 
ending March through December 1996; (7) IRS Form 1120, U.S. Corporation Income Tax Return for 1995; 
(8) State of California Form DE-6, Quarterly Wage Report, for the quarters ending March through December 
1996; (9) a one-year commercial lease for showroom premises dated January 2, 1997; (10) Customs Form 
7501, Entry Summary, dated August through December 1996; (1 1) debit notes and bills of lading; and (12) 
bank statements dated during the month of March 1996 and the months August through December 1996. 
The director subsequently submitted a request for evidence on February 10, 1997, yet did not request 
evidence specifically related to whether the petitioner was doing business during the appropriate time period. 
Nevertheless, the petitioner submitted with its April 24, 1997 response its 1996 corporate tax return and 
related financial statements, a "verification" from the petitioner's landlord of its lease for commercial 
premises, and an addendum extending the lease until 2003. The petitioner also submitted additional financial 
documents, however, the dates reflected on the financial statements do not relate to the time period during 
which the immigrant petition was filed. Therefore, they will not be considered herein. 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). 
The director issued a Notice of Intent to Revoke approval of the immigrant petition on February 17,2005. In 
his notice, the director acknowledged photographs, shipping invoices, bills of lading and sales receipts 
submitted by the petitioner demonstrating its business activity through 1999. The director noted, however, 
that the petitioner had not provided evidence to establish that it has been doing business from 1999 until the 
present. The director referenced a public records search of the petitioner's business in the Business 
Development Division for the State of California that indicated the business "[had] been recently suspended." 
Consequently, the director concluded that the petitioner is no longer engaged in the regular, systematic and 
continuous provision of goods andlor services. The director properly provided the petitioner with an 
opportunity to respond to the proposed revocation. As no response was received from the petitioner, the 
director revoked approval of the immigrant petition in a decision dated April 29, 2005. In his decision, the 
director again referenced the lack of documentation demonstrating the petitioner's business activity from 1999 
until the present. 
On appeal, counsel contends that the petitioner has been doing business in the United States since 1999. 
Counsel references copies of the petitioner's federal and state quarterly wage reports filed during the years 
1996 through 2005, and invoices, packaging slips, bills of lading, Customs Form 7501, and United Parcel 
Service (UPS) statements for the years 2003 through 2005. The petitioner also submitted its corporate tax 
returns for the years 1999 through 2004. 
Upon review, the petitioner has demonstrated that it has been doing business in the United States since one 
year prior to the filing of the immigrant petition on February 3, 1997. The petitioner provided substantial 
documentary evidence in the form of corporate tax returns, federal and state quarterly wage reports, bills of 
lading, invoices, seller's permit, customs forms, financial statements and lease agreements demonstrating its 
business activity in the United States from 1996 through the date at which the director's notice of revocation 
Page 6 
was issued. Consequently, the director did not have good and sufficient cause to revoke approval of the 
immigrant petition based on the finding that the petitioner was not doing business in the United States for at 
least one year prior to the filing of the petition. Therefore, the director's decision related to this issue will be 
withdrawn. 
The AAO will next consider the issue of whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(#)(A) of the Act, 8 U.S.C. 3 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-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. 9 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. 
Page 7 
In the January 16, 1997 letter appended to the immigrant petition, the petitioner outlined the following job 
duties for the beneficiary's proposed position of general manager: 
Direct and coordinate the activities of the subsidiary company. Supervise the work of the 
staff and assign specific duties. Report the operations and management status to the 
parent company on a constant basis. 
Review market research and price analysis reports to determine company development 
directions and fix short-term and long-term development plans. 
Coordinate communications and business activities between U.S. subsidiary and China 
parent company. 
Develop strategies for market expansion in the U.S. and direct the implementation of the 
strategies with the help of the staff members. 
Make financial arrangements and allocate funds. Oversee the utilization of funds to 
ensure maximum profits. 
Oversee the business transactions of the subordinates. Negotiate and sign up major 
importinglexporting and domestic sales contracts. 
Recruit personnel for the subsidiary and direct the implementation of the company 
policies and regulations. Make evaluations on the working performance of the personnel. 
At present there are three employees under the supervision of [the beneficiary]. 
The petitioner stated that as the general manager, the beneficiary would function autonomously "managing 
and directing all development activities of [the petitioning entity] as they pertain to our international 
operations." 
The petitioner submitted its organizational chart, which identified the beneficiary's position as general 
manager, and noted the employment of a secretary and two salespersons. Appended to the chart was an 
outline of the job duties to be performed by each of the beneficiary's three subordinate employees. In 
response to the director's request for evidence, which did not specifically address the beneficiary's 
employment capacity, the petitioner provided a copy of its March 31, 1997 quarterly wage report which 
verified the employment of the petitioner's four workers. 
In his Notice of Intent to Revoke, the director noted his consideration of the beneficiary's proposed job duties, 
as well as the petitioner's organizational structure and its type of business as factors in establishing the 
beneficiary's employment capacity. The director stated that the job descriptions provided for each of the 
subordinate employees were not sufficient "to show that the beneficiary was acting in a manageriaVexecutive 
capacity," and did not identify whether the workers are employed in professional positions. The director 
noted that a review of the petitioner's current organizational chart revealed the employment of six workers, of 
which three were claimed to be managers or executives. The director stated that it was not reasonable that a 
company engaged in the sale of fur animals, crafts and toys could sufficiently operate with the represented 
organizational structure. The director also addressed the petitioner's "generic," "general," and "vague" job 
description, stating that it did not "convey any understanding of exactly what the beneficiary will be doing on 
a daily basis." The director noted that the petitioner did not identify the specific goals and policies established 
by the beneficiary or the discretionary decisions made by the beneficiary during the last six months. While 
the director allowed the petitioner thirty days within which to provide a rebuttal to the director's intent to 
revoke approval, no response was filed. In his April 29, 2005 Notice of Revocation, the director noted the 
same grounds as those previously outlined herein. 
Page 8 
On appeal, counsel references the beneficiary's job description, an outline of the beneficiary's decisions and 
goals, and the company's organizational chart as evidence of the beneficiary's employment in a primarily 
managerial capacity. Counsel states: 
According to the Petitioner, besides planning, developing and establishing policies and 
objectives of the company in accordance with the Board directives, the beneficiary also has 
final decision-malung authorities over business, accounting, personnel and future expansion 
plans. He directlylindirectly supervises the works of all subordinate staffs who release him 
from performing non-managerial daily tasks in the company. 
In his appellate brief, counsel challenges the director's reference to the petitioner's "generic" job description, 
stating that it is customary that "Chinese employees understand their scope of responsibility with the job 
description in its generic nature." Counsel further states that despite the generalization, the managerial or 
executive authority held by the beneficiary can be interpreted through such words as "direct," "supervise," 
"assign," "determine," and "develop." Counsel contends that the beneficiary's role as a manager or executive 
is established through the petitioner's annual sales, which amounted to $3,000,000 to $4,000,000. Counsel 
also references the attached job description as evidence that the beneficiary "set[s] the company development 
direction," "direct[s] the implementation of the company policies and regulations," and "exercise[s] 
discretionary decisions by making and establishing goals and policies from time to time to meet the growing 
needs of the company." 
Counsel provides the same job description as that submitted at the filing of the immigrant petition and 
submits an organizational chart of the petitioner's current staffing levels. Counsel also submits the petitioner's 
"development plan" for the years 1996 through 2000, demonstrating the goals and decisions made by the 
beneficiary in his capacity as general manager. 
Upon review, the director properly revoked approval of the immigrant petition. The petitioner did not 
demonstrate that at the time of filing the petition the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.56)(5). Here, although specifically addressed by 
the director, the petitioner failed to clarify and explain on appeal the specific managerial or executive job 
duties to be performed by the beneficiary on a daily basis. Counsel submitted with his appellate brief the 
same limited job description as that initially provided with the petition, which was mainly a summary of the 
beneficiary's job responsibilities. Counsel's additional explanation that Chinese employees understand the 
scope of responsibility associated with a generic job description appears to mock the statutory and regulatory 
requirements designed to assist CIS in determining an alien's eligibility for the requested classification. 
The regulation at 8 C.F.R. 5 204.5(j)(5) requires the petitioner to submit a clear description of the job duties 
to be performed by the beneficiary in the petitioning entity. The petitioner's failure to satisfy the regulatory 
requirement makes it difficult to ascertain what managerial or executive tasks would be associated with the 
beneficiary's responsibilities of coordinating the company's activities, "review[ing] market research and price 
analysis reports," developing corporate expansion strategies, and overseeing the allocation of funds and 
business transactions. For example, the AAO will not attempt to surmise what managerial decisions the 
beneficiary has made and what strategies have been implemented with regard to the petitioner's proposed 
expansion, or what managerial or executive role the beneficiary has in the company's market research or 
finances. Additionally, contrary to counsel's claim on appeal, absent additional documentary evidence, the 
AAO cannot assume that the words "direct," "supervise," "assign," "determine," and "develop" illustrate a 
primarily managerial or executive role within the company. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will 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). 
Rather than demonstrating employment in a qualifying capacity, the beneficiary's limited job description 
indicates that he would likely be engaged in the performance of many of the petitioner's non-qualifying 
functions. It appears from the petitioner's representations that the beneficiary would be personally responsible 
for performing functions related to maintaining the petitioner's financial and business records, particularly the 
accounts receivable and payable, inventory, and sales journals, as well as performing financial transactions 
for the company. In addition, as none of the job responsibilities of the three lower-level employees 
encompass these tasks, the beneficiary would likely be responsible for the company's marketing. Moreover, a 
review of the cumulative amount of wages paid to the petitioner's two salespersons during the first quarter of 
1997, the period during which the instant petition was filed, indicates that the sales representatives were 
employed, at the most, on a part-time bask3 It seems implausible that the petitioner could gross sales in 1997 
in the amount of approximately $400,000~ if not for the beneficiary's direct participation in selling the 
petitioner's products. This assumption is further supported by tradeshow nametags, which have been provided 
for the record, that identify the beneficiary as "exhibitor" and "buyer." The petitioner has not provided 
evidence that would dispute the conclusion that at the time of filing the beneficiary would be responsible for 
personally performing at least a portion of the petitioner's sales, as well as its marketing and maintenance of 
sales and financial records. An employee who primarily performs the tasks necessary to produce a product or 
to provide services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Moreover, as addressed by the director, the petitioner does not employ a staff sufficient to support the 
beneficiary in a primarily managerial or executive capacity. 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, CIS must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. It is also appropriate for CIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
absence of employees who would perform the non-managerial or non-executive operations of the company, 
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
This assumption is based on the unlikely suggestion that if the petitioner operates on a forty-hour workweek 
and the petitioner's two salespersons were in fact employed on a full-time basis, each would have been 
receiving wages of approximately $1 .OO or $2.00 per hour. 
This figure is based on the petitioner's "gross receipts or sales" reported on its 1996 corporate income tax 
return that covers the period of December 1, 1996 through November 30, 1997. 
Page 10 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As previously noted, the petitioner has failed to account 
for the performance of many non-qualifymg business functions by lower-level employees. As a result, it 
seems implausible that the reasonable needs of the petitioner are met through the employment of the 
beneficiary as general manager, as well as a secretary and two part-time salespersons. 
Based on the foregoing discussion, the director's notice of revocation was properly issued for "good and 
sufficient cause," and therefore, the revocation will be sustained. See Matter of Ho, 19 I&N Dec. at 590. 
Accordingly, the appeal is dismissed. 
The AAO will next consider whether the petitioner demonstrated the existence of a qualifying relationship 
between the foreign and United States entities at the time of filing the petition. 
The regulation at 8 C.F.R. § 204.5('j)(2) states in pertinent part: 
AfJiliate 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; 
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 stated in its January 16, 1997 letter that a qualifying relationship exists as a result of the foreign 
corporation's ownership of 100 percent of the petitioner's issued stock. As evidence of a parent-subsidiary 
relationship, the petitioner submitted: (1) its articles of incorporation and by-laws; (2) a stock certificate 
naming the foreign entity as the holder of 10,000 shares of the petitioner's issued stock; (3) a stock transfer 
ledger confirming the foreign entity as the sole shareholder of 10,000 shares of stock in the petitioning entity; 
and (4) a "verification" from the Ministry of Industrial and Commercial Executive Administration of Dingtao, 
Shandong province confirming that the foreign entity has three subsidiaries, one of which is located in the 
United States. 
In his February 17,2005 Notice of Intent to Revoke, the director recognized the 10,000 shares of stock issued 
by the petitioner to the foreign entity on December 16, 1995. The director stated, "[hlowever, the record fails 
to show that the foreign entity actually purchased the U.S. entity beyond the submission of the Articles of 
Incorporation, a stock certificate and a stock ledger." The director noted that relevant evidence would include 
a wire transfer receipt, bank statements, or other evidence of payment transferred from the purported parent 
company. The director concluded that the evidence was insufficient to demonstrate the existence of the 
Page 11 
claimed parent-subsidiary relationship. The director referenced the same insufficiencies in his April 29, 2005 
Notice of Revocation. 
On appeal, counsel challenges the director's finding that a qualifying relationship does not exist between the 
foreign and United States entities. Counsel addresses an increase in the foreign entity's capital investment in 
the United States entity in August 1998 and references evidentiary documentation, including the minutes from 
its board of directors' meetings in 1995 and 1998. 
Upon review, the record demonstrates the existence of a qualifying relationship between the foreign and 
United States entities. 
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 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 
(Comm. 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 of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. fj 204.56)(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 the instant matter, the record contains sufficient documentation to demonstrate that the foreign entity 
owned and controlled the petitioner at the time of filing the petition. The petitioner's issued stock certificate 
and stock ledger identify the foreign entity as the sole shareholder of the organization. The foreign 
corporation's ownership interest is confirmed on IRS Form 5472, Information Return of a 25% 
Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business, which 
identifies the foreign corporation as the foreign shareholder, as well as in the minutes from the petitioner's 
December 6, 1995 organizational meeting, which document that 10,000 shares were issued to the foreign 
Page 12 
entity in exchange for merchandise totaling $23,199.20 shipped from the foreign entity on December 2, 1995. 
Additional documentation, particularly in the form of invoices from the foreign entity to the petitioner and the 
petitioner's audited financial statement ending November 30, 1996~, corroborates the claim of a parent- 
subsidiary relationship. As a result, the director's decision pertaining to this issue will be withdrawn. 
The AAO will also consider the issue of whether the petitioner had the ability to pay the beneficiary's 
proffered annual salary of $30,000 as required in the regulation at section 204.5(g)(2). 
In his Notice of Revocation, the director recognized the 1996 and 1997 corporate tax returns submitted by the 
petitioner as evidence of its ability to pay the beneficiary his proffered salary, yet noted that the petitioner had 
not provided financial documentation related to the years 1998 through 2004. The director stated that the 
petitioner had failed to satisfy the regulatory requirement that the petitioner possess the ability to pay the 
proposed salary from the priority date until the date that the beneficiary obtains lawful permanent residence. 
On appeal, counsel references the minutes from the foreign entity's December 7, 1995 board of directors' 
meeting, which identifies that "all of [the petitioner's] profits derived within the next five years shall be 
retained at the US branch company as the development fund for business expansion." Counsel also references 
the petitioner's attached financial statement for the period ending November 30, 1996 as evidence of the 
petitioner's ability to pay. 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In 
the present matter, the petitioner did not establish that it had previously employed the beneficiary at the 
proffered salary. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K. C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income. 
623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have considered 
income before expenses were paid rather than net income. Finally, there is no precedent that would allow the 
petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
The petitioner's audited financial statement reflects issued and outstanding common stock in the amount of 
$10,000. The attached notes identify the petitioning entity as being wholly owned the foreign corporation. 
Page 13 
As the petition's priority date falls on February 3, 1997, the AAO must examine the petitioner's tax return for 
1997. The petitioner's IRS Form 1120 for the tax year December 1, 1996 through November 30, 1997 
presents a net taxable income of $1,576. The tax return, including Schedule E, does not reflect any amount of 
compensation paid to the beneficiary as an officer of the corporation. Accordingly, the AAO cannot conclude 
that the petitioner could pay a proffered wage of $30,000 per year out of this income. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has as of the 
date of filing and is the amount of cash or cash equivalents that would be available to pay the proffered wage 
during the year covered by the tax return. As long as the AAO is satisfied that the petitioner's current assets 
are sufficiently "liquid" or convertible to cash or cash equivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. The petitioner's net 
current assets of approximately $12,000 would not be sufficient to pay the beneficiary's proposed salary. 
The AAO notes that the beneficiary's California Resident Income Tax Return for the year 1997 reflects wages 
in the amount of $24,000. This clearly demonstrates that at the time of the priority date the petitioner was not 
able to pay the beneficiary his proffered annual salary of $30,000. The director properly revoked approval of 
the petition. 
Counsel does not specifically address on appeal the director's finding that the beneficiary was not employed 
overseas in a primarily managerial or executive capacity, yet merely contends that the beneficiary's eligibility 
for the requested classification was previously determined by CIS' approval of prior nonimmigrant petitions. 
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 $5 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 9 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cf: $9 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also 3 316 of the Act, 8 U.S.C. $ 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. 9 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing L-1 petitions than Form 1-140 immigrant 
petitions, some nonimrnigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30 (recognizing that CIS approves some petitions in error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of prooc each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS ffom denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
Page 14 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Suva, 
724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of required evidence in the 
present record, the MO finds that the director was justified in departing from the previous nonimmigrant 
approval by denying the present immigrant petition. 
Finally, the MO'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 nonirnmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Talung into consideration the merits of the instant issue, the MO affirms the director's finding that the 
beneficiary was not employed overseas in a primarily managerial or executive capacity. In its January 16, 
1997 letter submitted with the immigrant petition, the petitioner explained that as manager of the import and 
export department in the foreign company, the beneficiary possessed the following job duties: 
1. Direct and coordinate the overall operations of the Import & Export Department. Direct 
the subordinates to attract business partners and promote products. 
2. Review market research and price analysis reports and work out solutions for present 
problems and tentative plans for future business development directions. 
3. Set up business targets so as to determine the short term and long term projects and 
market strategies. 
4. Negotiate and sign up major import and export contracts. Oversee the business 
transactions of subordinates to ensure maximum profits. 
5. Recruit staff members for Import & Export Department and provide training for new 
staff. Make evaluations on the performance of staff members and report to the Personnel 
Department. 
6. Prepare reports in the business transactions and report to General Manager on a constant 
basis. Implement the policies and market strategies of the company. 
While the petitioner submitted an organizational chart of the foreign company, the beneficiary's position, and 
particularly any lower-level employees supervised by the beneficiary were not identified. 
The petitioner's job description fails to identify the specific managerial or executive job duties performed by 
the beneficiary while employed overseas. For example, it is unclear what "overall operations" the beneficiary 
performed in the company's import and export department or even which subordinate employees the 
beneficiary directed. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives 
is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. at 1108. Absent additional evidence documenting the specific managerial or executive 
tasks performed by the beneficiary in his role within the foreign entity, the AAO cannot conclude that the 
beneficiary was primarily employed as a manager or executive. 
Based on the foregoing discussion, the director's notice of intent to revoke approval of the visa petition was 
properly issued for good and sufficient cause. Additionally, the director's revocation of approval of the 
immigrant visa petition will be affirmed. The appeal will be dismissed. 
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. 8 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.