dismissed EB-1C Case: Lcd Display Products

identifying data dc!cted to 
prevent clearly I rfi ! .. ::il.mted 
invasion of perso~lzll privacy 
U.S. Department of Il[omeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
WAC 05 226 50448 
PETITION: 
 Imrmgrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Imrmgration and Nationality Act, 8 U.S.C. 
 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Oflice in your case. All documents have been returned to 
the office that originally decided your case. Any hrther inquiry must be made to that office. 
Adrmnistrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Adrmnistrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation engaged in the business of marketing and selling TFT LCD display 
products. It seeks to employ the beneficiary as its chief executive officer (CEO). Accordingly, the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or 
manager. The director determined that the beneficiary would not be employed 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 petitioner would employ the beneficiary in a capacity that 
is managerial or executive. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. $ 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) 
 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated August 11, 2005, which contained a 
general description of the beneficiary's proposed job responsibilities. As the director has incorporated this 
description into his decision denying the petition, the AAO need not restate the description. The petitioner 
also provided an organizational chart showing its organizational hierarchy as of August 5, 2005. The chart 
identifies the beneficiary as CEO and head of the organization. His immediate subordinates include a 
secretary, an assistant manager in the accounting and operation department, and a sales assistant and RMA 
support in the sales department. The chart further indicates that the petitioner intended to hire two additional 
sales assistants, but had not completed the hiring process at the time the petition was filed. As such, the 
petitioner specifically identified the five employees that were part of its organization at the time of filing. 
On January 18, 2006, Citizenship and Immigration Services (CIS) 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 including the job duties and educational levels for all employees under the beneficiary's 
supervision; 2) a detailed description of the beneficiary's proposed day-to-day duties with a percentage of 
time assigned to each duty in order to indicate how much of the beneficiary's time would be devoted to each 
of the listed duties; and 3) the petitioner's 2005 quarterly wage reports, its payroll summary, and the W-2 
wage and tax statements issued by the petitioner. 
The petitioner's response included an additional breakdown of the beneficiary's proposed job responsibilities, 
as well as brief descriptions of the job responsibilities of the remaining members of the petitioner's staff. As 
the director included this breakdown in the decision denying the petition, the AAO need not restate it. The 
petitioner also complied with the request for various financial documents and provided an updated 
organizational chart, which included the names, job titles, and salaries of the petitioner's entire staff as of 
January 3 1,2006. 
On May 12, 2006, the director denied the petition concluding that the petitioner failed to establish that it 
would employ the beneficiary in a managerial or executive capacity. The director acknowledged the 
petitioner's submission of two organizational charts throughout this proceeding, but deemed only the first 
chart relevant, as it is a more accurate reflection of the petitioner's organizational hierarchy at the time the 
Form I- 140 was filed. 
On appeal, counsel disputes the director's comments disregarding the organizational chart submitted in 
response to the RFE. Counsel denies that the petitioner submitted an earlier organizational chart and 
indicates that the prior submission was meant to illustrate the petitioner's quali%ng relationship with the 
beneficiary's foreign employer. Counsel's statement however, is without merit, as the record clearly contains 
a dated organizational chart as described in this decision, supra. While the RFE request for another 
organizational chart may have been unnecessary in light of the petitioner's prior submission, counsel's 
contention that the director mischaracterized the petitioner's submissions is unfounded. Furthermore, the 
intent of the RFE instructions with regard to the organizational chart appears to have been to seek additional 
details regarding the petitioner's staff at the time the Form 1-140 was filed rather than an up-to-date 
organizational chart for the company, which is irrelevant to the petitioner's eligibility. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a &re date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Cornrn. 
1971). Therefore, regardless of the intent of the RFE request, eligibility cannot be based in any part on an 
organizational structure that did not exist at the time the petitioner filed its Form 1-140. 
Counsel also disputes the director's references to executive and managerial capacity, asserting that the 
director placed an undue burden on the petitioner to establish that the beneficiary fits under both statutory 
definitions. However, the plain language of the director's decision establishes that counsel's argument is 
unfounded. It is customary for service decisions to cite the statutory definitions of managerial and executive 
capacity for the benefit of the petitioner in the event that a petitioner claims to fit one definition but provides a 
set of facts that suggest the beneficiary fits the other statutory definition. There is absolutely no indication 
that the director subjected the petitioner to additional scrutiny or placed an additional burden of having to 
establish that the beneficiary fits both statutory definitions. Rather, the director specifically stated that only a 
petitioner that chooses to assert eligibility based on both statutory definitions has the burden of establishing 
that its beneficiary's duties are both managerial and executive. Nowhere in the director's decision is there a 
suggestion that the petitioner in the instant matter has been subjected to this additional burden. 
rage 3 
Next, counsel contends that the director failed to analyze the petitioner's reasonable needs in light of its 
function and overall stage of development. Counsel discusses the petitioner's success and its increased level 
of business, indicating the need for the beneficiary's services during the petitioner's rapid development. 
However, in examining the executive or managerial capacity of the beneficiary, CIS will look first to the 
petitioner's description of the job duties. 
 See 8 C.F.R. 8 204.5@(5). 
 Thus, in instances where the 
beneficiary's job description lacks sufficient information to affirmatively establish qualifllng employment, the 
reasonable needs and stage of development are irrelevant, as neither supersedes the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by statute. See 
sections 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. § 1 10 1 (a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allocates a majority of his time to non-qualifllng tasks, but those needs will not 
override the statutory requirement. In the instant matter, the petitioner failed to submit a detailed job 
description that elaborates on the beneficiary's general job requirements with a percentage breakdown of the 
specific day-to-day duties. While the director clearly acknowledged the petitioner's submission, he properly 
commented on the lack of necessary detail. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). 
Furthermore, the AAO questions whether the petitioner's organizational hierarchy at the time of filing was 
sufficient to support a primarily executive position. The record shows that at the time the Form 1-140 was 
filed, the petitioner had five employees including the beneficiary. 
 The beneficiary's four subordinates 
included a secretary, a sales assistant, tech support, and an assistant manager. Thus, the organization 
essentially consisted of two tiers--one tier containing the beneficiary and the lower tier containing the 
remaining four employees. Although the more recent organizational chart shows that a general manager was 
eventually hired to separate the beneficiary from the lower tier employees, the general manager was not part 
of the petitioner's organization at the time the Form 1-140 was filed. The updated chart also shows a sales 
manager overseeing the work of an assistant manager and tech support in the sales department. However, 
the sales manager was also hired after the Form 1-140 was filed. Additionallv. while the more recent 
u d I 
organizational chart identifies 
 in the position of account manager, the original organizational 
chart identified the same individual as an assistant manager. The petitioner has not explained the change in 
- 
position titles. Nor has the petitioner addressed the director's adverse comments 
position may not be that of a professional. Regardless, even if the AAO were to accept 
position as one of a professional, the remainder of the beneficiary's subordinate staff was comprised of non- 
professional, non-supervisory, and non-managerial employees. 
 Moreover, while this determination is 
irrelevant to qualifylng as an executive as defined by the Act, it is also irrelevant to qualikng as a manager 
if, as here, the petitioner fails to show that a majority of the beneficiary's time will be spent on managerial 
duties. 
Finally, the AAO does not overlook the beneficiary's discretionary authority and his overall position with 
respect to others in the petitioner's organizational hierarchy. However, the petitioner is a sales-based 
organization where selling products is an essential function. The fact that the petitioner employed only one 
sales assistant at the time the petition was filed suggests that the sales function was also carried out by others 
within the petitioning organization, including the beneficiary. In light of the petitioner's failure to specify the 
actual duties the beneficiary would perform on a daily basis coupled with its lack of an adequate support 
staff, the AAO cannot conclude that the beneficiary would primarily perform duties of a qualifylng nature. 
For this reason, the petition may not be approved. 
Page 6 
Furthermore, the record supports a finding of ineligibility based on an additional ground that was not 
previously addressed in the director's decision. Namely, 8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner 
must establish that it has been doing business for at least one year prior to filing the Form 1-140. The 
regulation at 8 C.F.R. $ 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods andlor services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." Although the petitioner has provided a number of its financial records including bank 
statements and corporate tax documents, none of the submitted documentation is sufficient to enable the AAO 
to conclude that the petitioner conducted business on a "regular, systematic, and continuous" basis. Id. Even 
though the petitioner is a sales-based organization, the record lacks any invoices or sales receipts to suggest 
ongoing sales activity during the requisite 1 2-month period. 
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 identi@ 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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, service records show the petitioner's previously approved L-1 employment of the beneficiary. 
With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in general, given the 
permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny by CIS than 
nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $ $ 10 l(a)(44)(A) and 
(B) of the Act, 8 U.S.C. $ 1 10 1 (a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonirnrnigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
CJ: $4 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also 5 316 of the Act, 8 U.S.C. 5 1427. 
In addition, each 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 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 immigrant 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 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 
assertions that are contained in the current record, the 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 (Cornrn. 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 nonimrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 0 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only if 
it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.