dismissed EB-1C Case: Import/Wholesale

idatifyjhng data dek~ ta 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: CALIFORNIA SERVICE CENTER 
 Date: JUL 1 7 2006 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and NationaIity Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P 
Administrative Appeals Office 
- Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Califomia Service Center. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation claiming to be operating as an importer and wholesaler of general 
merchandise. 
 It seeks to employ the beneficiary as its general manager. 
 Accordingly, the petitioner 
endeavors to classify the beneficiary as an employrnent-based immigrant pursuant to section 203(b)(l)(C) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or 
manager. The director determined that the beneficiary would not be employed in a managerial or executive 
capacity and denied the petition. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The primary issue in this proceeding is whether the beneficiary would be employed in a capacity that is 
managerial or executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
* 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner provided an undated statement indicating that its previously filed 
Form 1-140 had been denied due to an adverse determination regarding the petitioner's ability to establish that 
it has a qualifying relationship with the beneficiary's claimed foreign employer. The petitioner Wher 
indicated that it continues to employ the beneficiary. The AAO notes that in a supplement to Part 6 of the 
Form 1-140 filed by the petitioner on September 23,2002, the petitioner provided the following description of 
the beneficiary's proposed position in the United States: 
[The beneficiary] is responsible for managing and directing the operations of the branch 
office with particular attention gven to the continuity of the trading activities. He sets the 
goals and plans and manages a systematic operations [sic] that is beneficiary to all trade 
related activities for the North America markets. In addition, he is involved with the 
administration of the branch, such as hiring and supervising employees, directing and 
monitoring the trade operations, co-ordinating [sic] the trading activities of the branch office 
with those of the parent company in China, reporting the operations to the parent company, 
etc. 
On July 20, 2004, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide the following documentation to assist in determining the beneficiary's employment capacity in the 
proposed position in the United States: 1) the petitioner's organizational chart illustrating its staffing levels as 
of the filing date of the Form 1-140 and the names and position titles of all employees; 2) a detailed 
description of the beneficiary's proposed duties, describing the beneficiary's typical day of work; and 3) the 
petitioner's third and fourth quarterly wage reports for 2003 and the first quarterly wage report for 2004. 
In response, the petitioner provided its organizational chart showing the beneficiary's position as subordinate 
only to the company's board of directors. The chart further shows that the beneficiary has two direct 
subordinates consisting of a secretarylaccountant and a sales manager. Although the sales manager is shown 
as having a single sales representative under his supervision, a note at the bottom of the chart indicates that 
the sales representative was terminated shortly prior to the date the Form 1-140 was filed. The AAO notes 
that all three of the requested quarterly wage reports were submitted and all three show that the petitioner had 
a total of three employees during the months prior to and following the filing of the Form 1-140. The 
petitioner did not clarify which of the employees assumed the job responsibilities of the sales representative, 
since the position was not filled. 
The petitioner also provided the following description of the beneficiary's proposed job duties: 
[The beneficiary] is the operations manager of [the petitioner], [sic] he is charged with the 
responsibility of managing and directing the operations of the branch office with particular 
attention given to the continuity of the trade activities between the U.S. and our parent 
company. [The beneficiary] is responsible for setting the goals and formulating plans for the 
branch office and managing a systematic operation that is beneficial to our trade activities in 
the North America markets. The position requires four years of college training in business 
plus at least five years of actual business experience. To properly perform his duties, [the 
beneficiary] is required to constantly observe and assess the economic, social, and financial 
changes in both China and the U.S., plan and implement corresponding changes at the branch 
office, hire, direct and supervise the sales personnel and supporting staff to promote the sales 
of products that best suit the market, inform the parent company of developments in the U.S. 
market as well as the operations at the branch, co-ordinate [sic] and facilitate the operations 
of both the parent company and the branch officer, maintain good relationships with the 
current and new customers. [The beneficiary] spends approximately 20% of his time 
monitoring and analy[z]ing the market, 25% of his time reviewing and analy[z]ing the 
operations of the branch office and formulating and implementing changes, 25% of his [time] 
directing and supervising the employees, 15% of his time corresponding with and reporting to 
the parent company, and 15% [of his time] performing customer service. 
On December 14, 2005, the director denied the petition noting that the petitioner's description of the 
beneficiary's job duties was insufficient to conclude that the beneficiary would primarily perform qualifying 
tasks under an approved petition. The director specifically pointed out that 15% of the beneficiary's time 
would be attributed to customer service, a task that is not deemed managerial or executive. 
Page 5 
On appeal, counsel objects to the director's use of term "menial" in reference to the beneficiary's job duties. 
However, despite the negative connotation implied by the director's usage of the term "menial," the idea that 
the director was clearly trying to convey is that a beneficiary of an 1-140 petition must primarily perform 
qualifying duties under an approved petition; any task related to customer service is not qualifying. That 
being said, the MO notes that the beneficiary's performance of a nonqualifying task that would only 
consume 15% of his time would not by itself render the beneficiary ineligible for classification as a 
multinational manager or executive. The petitioner does not have the burden of establishing that all of the 
beneficiary's duties would be of a qualifying nature; rather, the petitioner has the burden of establishing that 
the beneficiary's duties would beprimarily of a qualifying nature. Thus, any activity that only consumes 15% 
of the beneficiary's time cannot be said to be the beneficiary's primary activity. However, where, as in the 
instant matter, the petitioner has not specifically defined the actual duties the beneficiary would perform 
during the remaining 85% of his time, the AAO cannot make any affirmative conclusion as to the nature of 
duties to be primarily performed. 
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. 9 204.5Cj)(5). In the instant matter, while the 
petitioner's organizational chart and general discussion of the beneficiary's discretionary authority fit the 
statutory definition of managerial or executive capacity, these definitions are meant to serve only as 
guidelines to be applied to a specific list of duties. It is noted that the actual duties themselves reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). Thus, merely stating that the beneficiary would monitor and analyze the market, 
review and analyze operations, and formulate and implement changes says little of the actual duties the 
beneficiary would perform in carrying out these general job responsibilities. Additionally, the petitioner 
stated that 25% of the beneficiary's time would be attributed to employee supervision. However, with a total 
support staff of only two individuals and the lack of an adequate explanation as to the exact duties involved in 
supervising those individuals, it appears unlikely that approximately one fourth of the beneficiary's time 
would be devoted to overseeing their respective sales and bookkeeping duties. 
Furthermore, while counsel disputes the director's reference to the petitioner's lack of complexity in its 
organizational structure, the MO notes that support staff must be considered if for no other reason than to 
establish who within the organization is performing the petitioner's daily operational tasks. In the instant 
matter, at the time the Fonn 1-140 was filed the petitioner was purportedly doing business for approximately 
eight years. Thus, claiming that additional staff would eventually be hired is simply not corroborated by the 
petitioner's history as illustrated in the instant record of proceeding. In fact, the record remains unclear as to 
who actually performs the sales tasks since there is no indication that the sales representative's position was 
filled after the departure of the employee that purportedly performed those duties prior to the filing of the 
Form 1-140. Moreover, the record shows that during the fourth quarter of 2004, the beneficiary was the 
petitioner's sole employee, thereby indicating that the petitioner's staffing structure has considerably 
diminished since the time the petition was filed. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has 
been1 or will be employed in a primarily managerial or executive capacity. The fact that an individual 
' While the issue of the beneficiary's employment with the U.S. petitioner prior to filing the Form 1-140 is irrelevant for 
the purpose of determining the petitioner's eligibility in the instant matter, this issue is relevant for the purpose of 
determining the petitioner's eligibility to classify the beneficiary as an L- 1A nonirnmigrant. 
manages a small business does not necessarily establish eligibility for classification as a multinational 
manager or executive. The record does not establish that a majority of the beneficiary's duties have been or 
will be primarily within a qualifying capacity. Nor has the petitioner demonstrated that it has reached a level 
of organizational complexity wherein the hiringlfiring of personnel, discretionary decision-making, and 
setting company goals and policies constitute significant components of the duties performed on a day-to-day 
basis. Based on the evidence furnished, it cannot be found that the beneficiary has been or will be employed 
primarily in a qualifying managerial or executive capacity. 
Additionally, counsel vehemently asserts that the numerous prior approvals of the beneficiary's L-1 
employment preclude the denial of the petitioner's Form 1-140, as the petitioner detrimentally relied on the 
service center's actions. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted 
that, in general, given the permanent nature of the benefit sought, immigrant petitions are gven far greater 
scrutiny by Citizenship and Immigration Services (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 $3 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 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. CJ: $5 204 and 214 of the Act, 8 U.S.C. $8 1154 
and 1 184; see also fj 3 16 of the Act, 8 U.S.C. $ 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. $ 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing Form 1-129 nonimmigrant petitions than 
Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that CIS approves some petitions in error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimrnigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
immigrant petitions after approving prior nonirnmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 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). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Thus, despite the service center's favorable treatment of the petitioner's previously filed nonimrnigrant L-1A 
petitions, CIS is under no legal obligation to approve the immigrant petition without a proper showing that the 
petitioner is eligible for the benefit sought. 
Additionally, though not addressed in the director's decision, the record lacks sufficient evidence to establish 
that the petitioner has been doing business in the United States as claimed. The regulation at 8 C.F.R. 
@ 204.56)(2) states that doing business means "the regular, systematic, and continuous provision of goods andlor 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or office." 
In the present matter, the record contains numerous invoices and shipping documents, many of which name 
the foreign entity as a party to the transaction. However, none of the documents include the name of the 
petitioner. As such, the AAO is entirely unclear as to the petitioner's role, if any, in any of these transactions. 
If the petitioner did in fact play a role in any of the documented transactions, there is no indication that the 
petitioner received any payment for any service or goods provided. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
The AAO notes that lack of this extremely relevant evidence strongly suggests that some or all of the 
approvals of the petitioner's nonimmigrant visa petitions may have been erroneous. Accordingly, based on the 
reasons for the denial of the instant immigrant petition, a review of the prior L-1 nonimmigrant petitions approved 
on behalf of the beneficiary is warranted to determine if they were approved in error. Therefore, the director shall 
review the prior L-1 nonimrnigrant petitions approved on behalf of the beneficiary for possible revocation in 
accordance with 8 C.F.R. 9 214.2(1)(9). 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground for ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff: 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed. 
FURTHER ORDERED: The director shall review the prior L-l nonirnmigrant petitions approved 
on behalf of the beneficiary for possible revocation pursuant to 8 C.F.R. 
3 214.2(1)(9).