dismissed EB-1C Case: International Trade And Consulting

identiQing data deleted to 
prevent clearly unwarsnted 
invasioh of pmod privw 
U.S. Department of flomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
WAC 05 247 5 1696 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
y~iid&~~L 
obert P. Wiemann, Chief 
/ Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the immigrant visa 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. 
5 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California that 
claims to be engaged in international trade and project consulting. The petitioner represents itself as a 
subsidiary of an organization in the People's Republic of China that was formed as a result of a reorganization 
of the assets and operations of the beneficiary's foreign employer. The petitioner seeks to employ the 
beneficiary as its president and chief financial officer (CFO). 
The director denied the petition concluding that the petitioner had not established that the beneficiary would 
be employed by the United States entity in a primarily managerial or executive capacity or that the 
beneficiary had been employed by the foreign entity as a manager or executive. 
On appeal, counsel for the petitioner challenges the director's findings, claiming that Citizenship and 
Immigration Services (CIS) "utilized erroneous reasoning and failed to look at the totality of the evidence" 
when refusing to consider the beneficiary's proposed and former employment in a primarily managerial or 
executive capacity. Counsel submits a brief in support of the appeal. 
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 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. 
The first issue in this proceeding is whether the beneficiary would be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 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. 5 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-making; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
Counsel for the petitioner filed the Form 1-140 on September 13, 2005, noting the employment of the 
beneficiary and seven additional employees. In an attachment to the immigrant visa petition, the petitioner 
provided the following description of the beneficiary's proposed employment: 
Following the formulation of business development review and plan in accordance with 
company objectives and foreign company business plans, [the beneficiary] is charged with 
implementing these policies and business plans. She establishes internal company policies 
and procedures as well as business policy for the overseas market. She also controls 
foreign capital investment and is responsible for advanced technology introduction project 
development. She provides business location evaluation and seeks strategic business 
partners in the region. In addition, [the beneficiary] formulates specific business tasks and 
implementation plans as needed. She decides product line focus and prepares business 
reports to parent company management. Applying her senior[-]level management 
experience and industrial background expertise, she directs [the] petitioner's overall 
business operations, including final decision making on business development and other 
organization issues. ' She also conducts the hiring and firing of key level managers and 
provides internal company restructuring to meet [the] petitioner's business focus and 
approach. Under her supervision, the company has grown in both sales and organizational 
size. Her strategic plan has led to business partnerships (by developing exclusive regional 
distributors) on the east coast of the U.S. and in Canada to more effectively serve [the] 
petitioner's wholesalers and clients in those regions. 
As CFO, she will continue to be in charge of [the petitioner's] financial management. She 
will continue to establish financial policies and database financial management systems, 
manage foreign capital investment, as well as direct and control the overall financial 
planning at the company. 
[The beneficiary] supervises both the Vice General Manager and Vice President, who in 
turn are responsible for critical business functions and overseeing the office, sales, and 
marketing/logistics managers. The Vice General Manager and Vice President will support 
[the beneficiary] in administration, financial management, and business development. As 
highest in command with supervisory authority over professional-level employees, [the 
beneficiary] is clearly a multinational managerlexecutive under Section 203(b)(l)(C) of the 
[Act], as amended. 
The petitioner described its "management structure" as consisting of the president, vice-president, vice 
general manager, regional sales manager, office manager, and resource and logistic manager. In an appended 
organizational chart, the additional lower-level positions of sales associates and product design assistant were 
identified. The petitioner offered descriptions of the positions supporting the beneficiary in her employment 
as president and CFO, noting that the vice general manager would be responsible for managing the company's 
sales and administrative functions and increasing its market share, while the vice president would utilize the 
petitioner's United States location to develop its market in the United States, as well as that of the foreign 
Chinese entity. As the complete job descriptions are already part of the record, they will not be repeated 
herein. 
The director issued a request for evidence on February 28, 2006, directing the petitioner to submit the 
following evidence in support of the beneficiary's employment as a manager or executive: (1) a detailed 
description of the specific job duties to be performed by the beneficiary on a day-to-day basis, and the 
percentage of time the beneficiary would devote to performing each task; (2) a list of the employees directed 
by the beneficiary and their job titles; (3) an organizational chart identifying the positions of the employees to 
be supervised by the beneficiary; (4) copies of quarterly wage reports completed by the petitioner for the last 
four quarters; and (5) a copy of the petitioner's payroll summary, and Internal Revenue Service (IRS) Forms 
W-2 and W-3. 
Counsel for the petitioner responded in a letter dated May 18, 2006, providing a lengthy description of the 
beneficiary's job duties as president and CFO of the United States company. Based on the offered job 
description, the beneficiary would dedicate her time to the following job responsibilities: "consolidate the 
overseas company's overall business mission into an effective business goal for [the petitioner]," 15%; assume 
responsibility "for establishing and leading the company toward achieving business goals," 50%; supervising 
the vice general manager and his administrative management team, 15%; and supervising the business 
development team, 20%. As the beneficiary's job description is already part of the record, it will not be 
entirely repeated herein. Counsel again offered job descriptions for the beneficiary's subordinate employees, 
and a revised organizational chart identifying staffing changes incurred by the petitioner since the filing date. 
Because the beneficiary's eligibility for the requested immigrant visa classification is based on her job 
responsibilities and the petitioner's staffing levels on the date of filing, the company's subsequent changes in 
its staffing levels will not be considered in the instant analysis. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971) (finding that a petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts). 
Counsel further provided the petitioner's quarterly tax reports for 2005 and the first quarter of 2006, all of 
which offer significant information as to the petitioner's staffing levels on the filing date. The AAO notes that 
based on the petitioner's second and third quarter reports, of the eight employees represented on the original 
organizational chart, four were employed during the months immediately prior to the instant filing, and do not 
appear to have been employed in September 2005, the month during which the petition was filed. Similarly, 
the petitioner's third quarter report identifies four employees who have not been represented on its 
organizational chart, and whose positions have not been identified. Further, in light of the minimal wages 
reflected on the third quarter report, of the company's eight employees, five appear to have been working on a 
less than part-time basis. 
In a September 28, 2006 decision, the director concluded that the petitioner had not established that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director referenced the job descriptions offered for the beneficiary, and noted discrepancies in both the 
petitioner's staffing levels on the date of filing and the full or part-time employment status of its workers. The 
director questioned whether the petitioner employed any full-time workers to assist the beneficiary. The 
director concluded that the beneficiary "[would be] performing the entire functions of the petitioner[,] such as 
import[ing], warehous[ing], shipping, receiving, sales, attending trade shows, and promot[ing] product[s] to 
customers and retailers[,]'' and noted that the named tasks are not considered to be managerial or executive in 
nature. The director further noted that the petitioner had not demonstrated the need for a professional to 
perform in the positions of vice general manager, vice president, or resource and logistic manager, and 
concluded that the beneficiary would not be managing "a subordinate staff of professional, managerial or 
supervisory personnel who [would] relieve [her] from performing the services of the company in her 
absence." Consequently, the director denied the petition. 
Counsel for the petitioner filed an appeal on October 3 1, 2006. In an appellate brief bearing the same date, 
counsel contends that the petitioner offered a comprehensive job description demonstrating that 65 percent of 
the beneficiary's time would be spent performing in an executive capacity, and challenges that because the 
beneficiary would be employed as an executive, the petitioner is not required to demonstrate her 
"management of [an] organization, department, subdivision, function, or component," as noted by the director 
in his decision. Counsel states that in her role as president, the beneficiary's "main objective" is to consolidate 
the Chinese company's "business mission into an effective business goal for the petitioner," and further 
provides that the beneficiary is responsible for "controlling foreign capital investment, financial planning, and 
technology introduction project development, business location valuation, and internal company 
restructuring," and for developing strategic business policies. As an example of the beneficiary's executive 
decision-making, counsel references the petitioner's 12-page 2005-2006 Business Development Review and 
Plan, which was prepared by the beneficiary. Counsel states: 
[The] Beneficiary reviewed the company's compliance with governmental business and tax 
registrations, efficiency of organizational/administrative systems, and product lines and 
marketing approaches, and formulated specific goals with respect to production capacity, 
the establishment of a distribution network through regional wholesalers, and developing 
additional production resources in China. The Business Development and Review Plan 
was prepared by the beneficiary for review and approval by the Board and high ranking 
officials of the overseas company. The Business Development and Review Plan reflects a 
concrete discussion of the plans and goals formulated by the beneficiary beyond the 
petitioner merely asserting that the beneficiary is 'President'. 
Counsel further contends that CIS "utilized faulty reasoning to determine the number of [the petitioner's] 
employees." Counsel claims that the Act neither mentions nor requires the super-vision of a certain number of 
full-time employees to be considered a manager or executive, and stresses that the petitioner's reasonable 
needs in light of its overall purpose and stage of development should be reviewed if considering the 
petitioner's staffing levels. Counsel states: 
The petitioner was incorporated in 2001 and has been conducting the active imports, 
wholesale, and distribution of glass products and quartz related products from China for 
sale and distribution in the U.S. It provides a variety of company owned, designed, and 
manufactured container products for the market. In the floral market section, the company 
has developed sizeable wholesalers and established [a] base of regular clients. Therefore, 
its business heavily relies on business development and increasing business territory. The 
beneficiary's executive job duties (as described above) reflects [sic] this emphasis on 
generating business partnerships and developing exclusive regional distributors. [The] 
Petitioner's core business needs are beyond the beneficiary herself performing 'import, 
warehouse, shipping, receiving, sales, attending trade shows, and promoting product to 
customers and retailers.' Rather, such tasks are performed by [the] petitioner's staff, as 
depicted in the organizational chart and employee job duties (and discussed further below). 
With respect to the employment status of the employees depicted on the petitioner's organizational chart, 
counsel contends that the petitioner retained a full-time staff, and that "a low salary in and of itself does not 
indicate that the employees were not working in a full-time capacity." Counsel also claims that even if part- 
time, the lower-level employees "can just as effectively relieve the beneficiary of performing the day-to-day 
business operations [of the petitioning entity]." Counsel again notes the petitioner's staffing levels, claiming 
that the record, as a whole, demonstrates the beneficiary's proposed employment in an executive capacity. 
Upon review, the petitioner has not established that 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. fj 204.5(j)(5). 
 The definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high 
level responsibilities that are specified in the definitions. Second, the petitioner must prove that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her 
time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
Cir. July 30, 1991). 
Based solely on the lengthy description offered for the beneficiary's position, it appears that the beneficiary 
would be performing high-level executive job responsibilities in the petitioning entity. However, a 
comprehensive review of the beneficiary's claimed job duties in connection with the staffing levels 
represented by the petitioner and the personnel actually employed on the date of filing creates doubt as to 
whether the beneficiary would be supported in a primarily executive or managerial capacity. 
Counsel correctly observes on appeal that, when staffing levels are used as a determining factor in denying a 
visa to a multinational manager or executive, the reasonable needs of the organization in relation to its overall 
purpose and stage of development must be considered and addressed. See fj 101(a)(44)(C) of the Act, 8 
U.S.C. fj 1101(a)(44)(C). However, while counsel merely excuses the question of full or part-time 
employment on the part of the beneficiary's subordinates, this unexplained discrepancy is an essential factor 
in determining the capacity in which the beneficiary would be employed. The record as presently constituted 
does not corroborate the petitioner's claim that the beneficiary would be primarily establishing business goals 
of the petitioning organization and supervising subordinate management teams. 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 of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
As noted previously, the petitioner's third quarter wage report demonstrates the employment of eight workers 
on the date of filing. However, the positions of four have not been identified. Again, of the eight workers 
represented on the petitioner's original organizational chart, four were employed prior to the instant filing. 
Neither the petitioner nor counsel has explained whether the employees identified on the third quarter wage 
report assumed the positions of these former employees. The AAO also notes that despite referencing the use 
of regional distributors, the petitioner has not presented evidence of a relationship with any United States 
distributors. Without further evidence or clarification, the record demonstrates that at the time of filing, the 
petitioner employed the beneficiary as president, a vice president, a vice general manager, and a resource and 
logistic manager. Again, according to the September 30, 2005 quarterly wage report, the petitioner's vice 
general manager and resource and logistic manager were employed on a less than part-time basis, earning 
approximately $9 13 -00 and $1,569.00, respectively, during the third quarter. 
Consideration of the petitioner's staffing levels in light of its business purpose as a four-year old importer, 
wholesaler, and distributor demonstrates that the petitioner's reasonable needs would not be met while 
employing the beneficiary in a primarily managerial or executive capacity. Moreover, the nature of the 
petitioner's business, which involves importing, shipping, stocking, and selling products, undermines the 
petitioner's claims that the subordinate employees would relieve the beneficiary from performing non- 
qualifying duties. The petitioner has not sufficiently and accurately accounted for the performance of the 
functions associated with the positions of vice general manager, resource and logistic manager, regional sales 
manager, or office manager, or the performance of the non-managerial or non-executive tasks related to the 
positions of sales associate and product design assistant. The AAO acknowledges that the position of vice 
general manager is represented in the offered job description as full-time with flexible hours. However, based 
on the wages earned during the period in question herein, the vice general manager cannot be deemed to have 
been performing in a full-time capacity or to sufficiently support the beneficiary by performing the associated 
sales and marketing administrative functions. Moreover, the petitioner leases a 4,800 square foot warehouse 
for purposes of receiving, storing, shipping and selling products, but has not documented the employment of 
lower-level workers to perform these operational non-qualifying tasks. Considering the numerous, 
unexplained discrepancies in the petitioner's staffing levels on the date of filing, the AAO cannot be expected 
to merely assume that the beneficiary's subordinates "effectively relieve the beneficiary of performing the 
day-to-day business operations," as suggested by counsel on appeal. 
While the beneficiary's job duties are presented as being primarily executive in nature, a critical review of the 
employees purportedly supporting the beneficiary in her position as president and chief financial officer 
undermines the representations made by the petitioner, and suggests that the beneficiary would be responsible 
for personally assisting in the performance of the company's administrative, sales, marketing, warehousing, 
and shipping functions. The AAO notes that an employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int 'I., 19 I&N Dec. 593, 
604 (Comm. 1988). Although counsel challenges this finding on appeal by reiterating the executive 
responsibilities assigned to the beneficiary and referencing the positions represented on the petitioner's 
organizational chart, he has not clarified the relevant and apparent inconsistencies in the petitioner's staffing 
levels, which preclude a finding that the beneficiary would be sufficiently supported in a primarily managerial 
or executive capacity. 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). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
by the United States entity in a primarily managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
The second issue in this proceeding is whether the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity. 
The petitioner did not specifically address the beneficiary's former employment with the foreign entity in its 
initial filing. As a result, in his February 28, 2006 request for evidence, the director requested that the 
petitioner submit the following evidence in support of the beneficiary's employment as a manager or 
executive of the foreign entity: (1) a detailed description of the specific job duties performed by the 
beneficiary on a day-to-day basis, and the percentage of time the beneficiary devoted to performing each task; 
(2) a list of the employees directed by the beneficiary and their job titles; and (3) an organizational chart 
identifying the positions of the employees supervised by the beneficiary. 
In his May 18, 2006 response, counsel referenced a detailed description of the beneficiary's employment in 
the foreign entity. The AAO notes, however, that the specific exhibit referenced by counsel was not provided 
for the record. 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). 
With respect to the beneficiary's former employment, counsel submitted an employment verification letter, in 
which the foreign entity confirmed the beneficiary's employment as deputy manager of its import-export 
department from March 1999 through June 2000, and as manager of the North American department from 
June 2000 through July 2001, following which, the beneficiary was transferred to the United States as a 
nonimmigrant. The foreign entity explained that while employed as the manager of the North American 
department, the beneficiary was also the company's financial planning supervisor, during which she 
"manage[d] the financial budget planning based on [the] company's funds for each department." On an 
attached organizational chart, the beneficiary was identified as supervising a deputy manager and a quality 
assurance specialist. Counsel provided descriptions for the positions held by the beneficiary's two 
subordinates. 
In his September 28, 2006 decision, the director concluded that the beneficiary was not employed by the 
foreign entity in a primarily managerial or executive capacity. The director noted the employment 
verification letter submitted by the foreign company, and, focusing on the previous position of deputy 
manager of the import-export department, concluded that the beneficiary had been performing non-qualifying 
tasks related to the foreign entity's shipping and administrative functions. The director further noted that the 
evidence provided of the beneficiary's former employment was "vague and nonspecific," and failed to 
document what tasks the beneficiary performed on a daily basis. Consequently, the director denied the 
petition. 
On appeal, counsel for the petitioner contends that CIS "place[d] undue emphasis on the overseas company's 
letter" in concluding that the beneficiary did not occupy a primarily managerial or executive capacity. 
Counsel claims that the foreign company's letter, in conjunction with the job descriptions provided for the 
beneficiary's subordinates establishes the beneficiary's prior management of the North American Department 
and employment with the foreign entity as a manager or executive. 
Upon review, the petitioner has not established that the beneficiary had been employed by the foreign 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. 5 204.5('j)(5). 
The extremely limited descriptions of the beneficiary's former employment as the deputy manager of the 
foreign entity's import-export department and manager of the North American department fail to demonstrate 
that either position was primarily managerial or executive in nature. As correctly noted by the director, the 
representations made by the foreign entity in its employment verification suggest that as the import-export 
manager the beneficiary was performing non-qualifying tasks related to the company's shipping function, 
such as "handl[ing] all the documents," settling bank accounts, and representing the foreign company in 
business negotiations. The AAO notes that an employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Znt'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
The petitioner has not submitted a sufficient job description to determine what managerial or executive job 
duties were performed by the beneficiary during her employment as the manager of the foreign North 
American department. Despite counsel's suggestion on appeal, the capacity in which the beneficiary's was 
employed cannot be inferred from the job descriptions of subordinate employees. While the subordinates' job 
descriptions may assist in determining whether the beneficiary was relieved from performing non-managerial 
or non-executive tasks of the department, the actual job duties of the beneficiary reveal the true nature of her 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). The petitioner has failed to answer a critical question in this case: What did the beneficiary 
primarily do on a daily basis? 
Although the director noted that the record was inadequate with respect to the beneficiary's foreign 
employment, counsel did not submit on appeal additional evidence of the specific job duties performed by the 
beneficiary in the overseas 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. at 534. Absent an additional description of the 
positions held by the beneficiary in the foreign entity, the AAO cannot conclude that the beneficiary was 
employed in a primarily managerial or executive capacity. For this additional reason, the appeal will be 
dismissed. 
Counsel notes on appeal CIS' prior approval of three L-1A nonimmigrant visa petitions filed by the petitioner 
on behalf of the beneficiary. It should be noted that, in general, given the permanent nature of the benefit 
sought, immigrant petitions are given far greater scrutiny by CIS than nonimmigrant petitions. The AAO 
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of 
managerial and executive capacity. See $5 101(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. $5 1154 
and 1184; see also 5 316 ofthe Act, 8 U.S.C. 5 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-1 A petition's validity). Because CIS spends less time reviewing L-1 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 25 (D.D.C. 2003). 
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. See 8 C.F.R. 5 103.8(d). The prior 
nonimmigrant approvals do not preclude CIS from 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 
Page 1 I 
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. CIS denies many 1-140 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. Sava, 724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory 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 er/oneous. 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 AAO finds that the director was justified in departing from the 
previous nonimmigrant approvals by denying the present immigrant petition. 
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.), affd, 248 F.3d 1 139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.