dismissed EB-1C Case: Management Sales Training And Consulting

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 - 2, 
U.S. Citizenship 
and Immigration 
Services 
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. 8 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. 
drninistrative Appeals Office 
DISCUSSION: The employment based immigrant visa petition was denied by the Director, Nebraska Service 
Center, The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner was incorporated in the Commonwealth of Virginia in 2003 and claims to be engaged in 
management sales training and consulting.' It seeks to employ the beneficiary as its president 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 denied the petition, determining that the beneficiary would not be employed in a managerial or 
executive capacity in the United States. On appeal, counsel for the petitioner alleges that the director's 
decision misstated and misapplied the law and asserts that the facts of the case warrant an approval of the 
petition. In support of these contentions, counsel submits a brief and additional evidence. 
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 afiiliate 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 previousIy 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 
1 
A review of corporate records as maintained by the Virginia State Corporation Commission indicates that as 
 . 
of December 31, 2007, the petitioner's corporate status as a limited liability company was canceled. 
Accordingly, the appeal appears to be moot because the petitioner appears to no longer be conducting 
business. See 8 C.F.R. $ 204.50)(3)(i)(D). Nonetheless, in the interest of entering a full decision on the 
record, the AAO will address the merits of the appeal. 
Page 3 
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. 
Prior to addressing the issues, the AAO must emphasize that the critical facts to be examined are those that 
were in existence at the actual time of filing the petition. It is a long-established rule in visa petition 
proceedings that a petitioner must establish eligibility as of the time of filing. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
1998). 
If the petitioner or beneficiary become eligible under a new set of facts, the proper course of action is to file a 
new petition. Despite the previous denial, there is no bar to the petitioner's filing of a new petition supported 
by new evidence of eligibility. 
The first issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as 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. 5 1101(a)(44)(B), defines the term "executive capacity" as 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. 
On Form 1-140, which was filed on October 24, 2006, the petitioner claimed that it currently employed three 
persons. In a letter of support dated October 15, 2006, the petitioner provided an abundant description of the 
beneficiary's role in the company and duties performed. In relevant part, the petitioner provided the 
following overview of the beneficiary's duties in the United States: 
As President, [the beneficiary] is in charge of determining target markets for The Sales 
Activatofl, pricing, overseeing budgets and expenses, directing operations, reporting results 
to the overseas parent company as well as communicating results to the Board of Directors. 
Furthermore, as The Sales Activator@ is the primary product represented by the Petitioner, 
the Beneficiary of this Petition was integral in the creation of the product along with 
determining updates as necessary to the product on the cutting edge of current sales trends. 
The Beneficiary of this Petition . . . has overseen all aspects of the development of The Sales 
Activator@ and the work performed to sell the product throughout the United States. As our 
President, the Beneficiary ensured the right tools were put into The Sales Activator@ for sales 
professionals. Also he had the final decisions on which markets to target along with the 
budgetary expenses for each market. Clearly major decisions made by the Beneficiary have 
been well thought out for [the petitioner], as the Petitioner has experienced strong profitable 
growth in a short amount of time. 
Regarding the need for the beneficiary's services on a permanent basis, the petitioner stated: 
[The beneficiary] is largely responsible for developing the services offered by [the petitioner]. 
Additionally, as our president, [the beneficiary] has the final say on budgets, expenses, sales 
determinations and overseeing any representatives to further the business of the Petitioner. 
The Beneficiary determined a core group of consulting services to be offered and is 
recognized among customers as being the cornerstone of the sales consulting team. The 
Beneficiary uses his contacts to generate strong consultancy revenue and is the driving force 
behind the agreement for consultant services with Shell Oil, a major customer of the 
Petitioner. 
Page 5 
[The beneficiary] has proven success in establishing new market channels and achieving high 
levels of sales. He is a seasoned senior executive who has the skills, knowledge and 
wherewithal to move the company forward. His industry networking will allow him to amass 
a large number of US based clients for the Petitioner as long as he remains President. 
Therefore, his services are crucial to the future success of [the petitioner]. 
Finally, the petitioner provided an overview of the beneficiary's duties and the percentage of time he devoted 
to each. In relevant part, the petitioner identified these duties as follows: 
Overall direction and execution of all aspects of [the petitioner's] marketing and 
development initiatives. (8 to 12 hours per week). 
Initial identification, communication, and compliance with statutory and regulatory 
agencies related to contacts, exports and promotions in the United States. (0-2 hours per 
week). 
Evaluation of feasibility of further expansion (2-5 hours per week). 
Development of business relationships with potential clients including hiring and 
managing staff that maintain individual accounts, trainings and contacts (15-25 hours 
per week). 
Establishment of ongoing business goals, policies and procedures for [the petitioner] (8- 
12 hours per week). 
The petitioner also submitted an organizational chart, which indicated that the beneficiary, as president, 
oversaw the following employees: 
drninistrative Assistant 
Administrative / Financial Assistant 
rn 
VP of Sales Development, who in turn oversaw 
 Sales Support. 
In addition, the petitioner submitted a list of thirteen additional responsibilities of the beneficiary, plus copies 
of sponsorship and consultation agreements. 
In a request for evidence issued on July 23, 2007, the director requested detailed information pertaining to all 
aspects of the beneficiary's role in the petitioner's business, including a more detailed overview of his duties 
and a specific explanation with regard to what staff members perform the training and consulting services 
which the petitioner claimed to provide. The director further requested that the petitioner list all employees 
under the beneficiary's supervision, along with a more detailed description of their duties. 
Page 6 
The petitioner, through counsel, submitted a response on August 31, 2007. With regard to the beneficiary's 
duties, the petitioner submitted a lengthy and more detailed overview of the time devoted to the beneficiary's 
claimed duties. The duties were broken down as follows: 
Hiring of and ensuring specialized professionals are properly trained (1-3 
hourslweek) 
Developing business plans, products and platforms (2 hourslweek) 
Determining goals and procedures (3-4 hourslweek) 
Overseeing initiatives to engage new clients and revenue streams (2-5 hourslweek) 
Overseeing communication with client compliance departments (0-2 hourslweek) 
Overseeing corporate actions to ensure liability issues as well as major contract 
responsibilities and duties are properly considered (0-2 hours/week) 
Overseeing the interface of the Petitioner with government agencies, both for 
corporate goodwill for the Petitioner as well as for the purpose of attempting to create 
fkther markets for products and services offered by the Petitioner (0-2 hourslweek) 
Directing the expansion of the Petitioner into new markets, both domestically and 
overseas, based upon the need to efficient[ly] and effectively generate new revenue 
(1 -4 hourslweek) 
Directing the effort to determine new products and services and overseeing the 
ongoing effort to improve products and services offered by the Petitioner (1-4 
hourslweek) 
Direct the development of both a strong team with clear points of contact as well as a 
continually present organization structure to maximize customer satisfaction and 
profits (5-1 2 hourslweek) 
Oversee the evaluation of employees to ensure members of [the petitioner's] team are 
performing at the highest level (2-5 hourslweek) 
Oversee the implementation and overall efforts performed toward the achievement of 
sales goals and objectives. He is also needed to ensure sales goals and objectives are 
communicated to all levels in the structure of the Petitioner (3-5 hourslweek) 
Direct the evaluation of service quality provided to customers of the Petitioner. 
Based on his findings, the Beneficiary will develop procedures to improve quality of 
services as needed (2-5 hours/week) 
Oversee the establishment of major ongoing business goals, policies and procedures 
for the Petitioner with only limited oversight/supervision from shareholders of the 
Petitioner (8-1 2 hourslweek) 
Regarding the staffing of the petitioner and the performance of the training and consulting services, the 
petitioner explained that currently, the petitioner's staff was composed as follows: 
Beneficiary, President 
The AAO notes that this organizational structure differs from that claimed at the time of filing. The petitioner 
claimed that it would hire two additional consultants on an as-needed basis. The petitioner claimed that the 
hands-on training was done by 
 and The petitioner noted that 
 is a part- 
time employee who works 15-20 hours per week. The petitioner further stated that the beneficiary also 
provides supplemental "consulting assistance" for major clients, "performs executive sales training along with 
consultant work at the highest level," and "often must oversee and add to work performed by our two 
consultants on site." In addition, despite the director's specific request for all Form W-2, Wage and Tax 
Statements, issued to its employees 
 responded b submitting only two forms: one for 
the beneficiary, and a second for 
 indicating that 
 earned only $5,000 from 
October 2006 to December 2006. 
On December 3, 2007, the director denied the petition, finding that the petitioner had failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. The director noted that 
based on the size of the petitioning entity and the current organizational structure, it did not appear that the 
reasonable needs of the petitioner warranted the employment of the beneficiary in a primarily managerial or 
executive capacity. 
On appeal, counsel contends that the director erred in reaching this conclusion. Counsel asserts that the 
beneficiary is clearly employed in a qualifying capacity, and that the director improperly issued a request for 
evidence that omitted crucial information. Counsel submits a brief and additional evidence in support of this 
contention. 
Upon review, the AAO concurs with the director's findings. Prior to analyzing the evidence of record, the 
AAO will first address counsel's contention that the director's request for evidence omitted specific 
information regarding the deficiencies in the evidence. Specifically, counsel asserts that had the director 
specifically outlined the reasons why the evidence in the record was insufficient, the petitioner could have 
responded more appropriately and established eligibility. This argument is flawed. 
The regulation at 8 C.F.R. 5 103.2(b)(8) provides that the issuance of an RFE is discretionary. The director is 
not required to issue a request for further information in every potentially deniable case. According to the 
regulation at 8 C.F.R. 5 103.2(b)(8)(iii), if all required initial evidence has been submitted but the evidence 
submitted does not establish eligibility, Citizenship and Immigration Services (CIS) may request more 
information or evidence from the applicant or petitioner, to be submitted within a specified period of time as 
determined by CIS. Therefore, the director was not required to issue a request for evidence in this matter, but 
by doing so, the petitioner was afforded an additional opportunity to supplement the record with additional 
evidence. The director fixther is not required to state potential grounds for denial in the request for evidence, 
in contrast to the petitioner's contentions. Furthermore, the petitioner has supplemented the record on appeal 
to rebut the director's basis for denial. 
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. 8 204.50)(5). Although the petitioner provided a 
lengthy overview of the beneficiary's duties in both the initial letter of support and the response to the request 
for evidence, the descriptions provided are nondescript and also seem to identify duties not typically reserved 
for managers or executives. Based upon the evidence submitted, it did not appear that the beneficiary would 
be primarily engaged in qualifying managerial or executive duties. The AAO agrees with the director's 
conclusions. 
The definitions of executive and managerial capacity each 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). 
In both the initial letter of support and in response to the request for evidence, the description of duties 
provided simply adopts many of the key phrases used in the statutory definitions of managerial and executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act. General statements such as "determining goals and 
procedures," "oversee the evaluation of employees" and "oversee the implementation and overall efforts 
performed toward the achievement of sales goals and objectives" do little to clarify the exact nature of the 
beneficiary's duties. Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden 
of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 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. 
Although the petitioner provided an overview of a "typical" work week for the beneficiary in both the initial 
letter of support and the response to the request for evidence, the duties claimed therein are more akin to tasks 
performed by sales and marketing staff as opposed to employees primarily engaged in managerial or 
executive duties. Specifically, in the October 15, 2006 letter of support, the petitioner states that "[the 
beneficiary] is largely responsible for developing the services offered by [the petitioner]." Additionally, the 
petitioner claims that the beneficiary was integral in the creation of The Sales Activator@, which is the 
petitioner's main product. Finally, the petitioner stated that the beneficiary also provides supplemental 
"consulting assistance" for major clients, "performs executive sales training along with consultant work at the 
highest level," and "often must oversee and add to work performed by our two consultants on site." 
These claims, in and of themselves, render the beneficiary ineligible for the benefit sought, since he is 
obviously playing a crucial role in developing the petitioner's main product and promoting it through sales 
and marketing. The petitioner failed to clearly indicate how much of the beneficiary's time is devoted to 
product development, sales, and consulting tasks. 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 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
Additionally, the AAO will look at the beneficiary's subordinate staff to determine whether these employees, 
by virtue of being managerial, supervisory, or professional employees, adequately relieved the beneficiary 
from performing non-qualifying duties. The organizational structure of the petitioner at the time the petition 
was filed on October 24, 2006 indicated that the petitioner employed a Vice President of Sales Development, 
two administrative assistants, and a sales person. Although an updated organizational chart was submitted in 
response to the request for evidence, showing the hiring of an additional employee with the title of vice 
president and the elimination of the sales person and an administrative assistant, the AAO notes that this new 
chart demonstrated the petitioner's current hierarchical structure, and not the structure of the petitioner at the 
time of filing as specified in the request for evidence. 
The organizational chart submitted with the petition indicated that the beneficiary supervised the two 
administrative assistants and the vice president of sales development, who in turn supervised a sales person. 
Upon review of the evidence in the record, however, the petitioner has failed to corroborate its claimed 
organizational hierarchy with evidence of wages paid to these employees. The petitioner has submitted 
documentation of the employment of the beneficiary and , in the form of Forms W-2. 
However, W-2 form indicates that he earned only $5,000 from October 2006 to December 
2006. Since no evidence of payments to 
 as an independent contractor was submitted, it would 
appear that based on these minimal wages, 
 at best was a part-time employee. 
Additionally, the petitioner claims that 
 has been working for the U.S. entity since 2004, and 
that she was hired as a full-time employee in December of 2006. 
 However, the petitioner submitted 
insufficient evidence of her claimed employment. Specifically, the record contains only a Form 1099, 
Miscellaneous Income, issued to her for the year 2006 in the amount of $2,000. Despite its claim to have 
hired B as a hll-time employee, the petitioner has not submitted her Form W-2 for 2006, and no 
other evidence was submitted to corroborate the petitioner's claims. In addition, despite the submission of a 
Form 1099, the petitioner's Form 1065, U.S. Return of Partnership Income for the year 2006 does not list any 
compensation paid to independent contractors during this period. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Finally, it is noted that, the petitioner's alleged senior vice president of consulting, was not 
hired until November 2006, after the filing of the petition. Moreover, the petitioner failed to submit any 
documentation of wages paid to him. Based on these deficiencies, the claimed organizational structure of the 
petitioner at the time of filing cannot be verified. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Somi, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Page 10 
Moreover, the director noted that the small size of personnel and the nature of the petitioner's business did not 
support a finding that the petitioner could support the beneficiary in a capacity that was primarily managerial 
or executive. Although the director based his decision partially on the size of the enterprise and the number 
of staff, the director did not fully analyze the reasonable needs of the enterprise. 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. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc, v. US. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is 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 
Corp. v. INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). 
At the time of filing, the petitioner was a three-year-old company providing consulting services and sales 
training workshops that claimed to have a gross annual income of $191,984. The petitioner claimed to 
employ the beneficiary as president, plus a vice president of sales development, two administrative assistants, 
and a sales person. As discussed above, however, the petitioner has failed to sufficiently document the 
employment of these persons as claimed on the organizational chart. Therefore, while the petitioner claimed 
that the beneficiary would not engage in the day-to-day operations of the company, it failed to provide 
evidence that a subordinate staff was in fact employed which would relieve him from performing the 
non-managerial operations of the company. Moreover, the petitioner supplemented the record with 
information on staff members hired after the petition was filed, and not the staff members on staff at the time 
of filing. Finally, the petitioner specifically states in the supporting documentation that the beneficiary was 
directly responsible for producing the petitioner's chief product and for executing the consulting agreements 
with clients. It appears that the beneficiary is the crucial person in the petitioner's enterprise as a result of his 
creation of the product, his contacts with clients, and his marketing skills. To establish that the reasonable 
needs of the organization justify the beneficiary's job duties, the petitioner must specifically articulate why 
those needs are reasonable in light of its overall purpose and stage of development. In the present matter, the 
petitioner has not explained how the reasonable needs of the petitioning enterprise justify the beneficiary's 
continued performance of these duties which are clearly sales, marketing and consulting tasks. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sofici, 22 I&N Dec. at 165. 
While the petitioner on appeal submits additional documentation to support the beneficiary's eligibility, this 
documentation consists primarily of testimonials clients and business associates, in addition to the 
resubrnission of previously-reviewed descriptions of the beneficiary's duties. Despite counsel's assertions in 
the appeal brief, this documentation is insufficient to establish that the beneficiary is not engaged in the 
Page 11 
provision of the petitioner's services. 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). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg. Comm. 1 972)). 
The regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time 
the petition is filed. See 8 C.F.R. $ 103.2(b)(12). A visa petition may not be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Cop, 17 
I&N Dec. 248 (Reg. Comrn. 1978). Although the petitioner claimed, in response to the request for evidence, 
that it has since hired an additional executive employee and that both of these vice presidents perform the 
consulting and sales-based services of the petitioner, the fact remains that at the time of filing in October 
2006, the petitioner did not have the organizational complexity to support the beneficiary in a qualifying 
capacity. For the reasons set forth above, the director correctly concluded that the beneficiary was not 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner noted that CIS approved another petition that had been previously filed on behalf of the 
beneficiary. The director's decision does not indicate whether he reviewed the prior approval of the other 
immigrant petition. If the previous immigrant petition was 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 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). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 0 228785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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. § 1361. The petitioner has not sustained that burden. Therefore, 
the appeal will be dismissed. 
ORDER: The appeal is dismissed.