dismissed EB-1C Case: Marketing And Advertising

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
prevent clearly un- 
inndon ~~LSOMJ prlvac~ 
U. S. Citizenship 
and Immigration 
Office: TEXAS SERVICE CENTER 
 Date: SEP 0 8 2006 
SRC 05 256 52643 
IN RE: 
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. § 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. 
2' 
- -7- 
_-I 
f - 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation operating as a marketing and advertising enterprise. It seeks to employ 
the beneficiary as its presidedgeneral director. 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. 9 1153(b)(l)(C), as a multinational executive or manager. The director 
denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to establish that 
the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 2) the petitioner 
faiIed to establish that the beneficiary would employ the beneficiary in the United States in a managerial or 
executive capacity. 
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 two issues in this proceeding call for an analysis of the beneficiary's employment capacity. The first 
issue is whether the beneficiary was employed abroad in a primarily managerial or executive capacity, and the 
second issue is whether the petitioner established at the time it filed the Form 1-140 that the beneficiary would 
be primarily employed in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(A), provides: 
Page 3 
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. 
 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner provided a letter dated September 16, 2005, which contained the 
following statements describing the beneficiary's proposed position in the United States: 
Since her transfer to [the petitioning entity], [the beneficiary] has performed and continues to 
perform the following duties: plan and control all the functions of relations in [the] 
administrative area of the business; perform necessary legal obligations, including with [sic] 
banking, [sic] institutions, and individual contracts; supervise existing managers for several 
marketing, media, art [and] accounting departments; supervise and control the executive 
activities for the managers of the different areas of [sic] [alrt department; media department; 
accounting department, workshops for exterior publicity and reproduction; [and the] 
administrative department. Additionally, she continues to market the company to attract 
clients, define marketing strategy in conjunction with, [sic] and in light of the client's desires 
and stated marketing goals, make executive decisions regarding capital improvements to 
company equipment, and execute necessary licensing and financing agreements on behalf of 
the company in that regard. 
The petitioner also provided a copy of its organizational chart and what appears to be list of the duties 
performed by the petitioner's employees. However, with the exception of the position titles and employee 
names, the remainder of the statement addressing the job duties was in Spanish and was not accompanied by a 
certified English language translation. See 8 C.F.R. § 103.2(b)(3). In the organizational chart, the petitioner 
identified a total of eight employees: the beneficiary at the top of the organization's hierarchy with the 
position title of general manager; three direct subordinates including an administrative assistant, a sales and 
market strategist, and one sales manager with four sales representatives as his direct subordinates. 
Although the petitioner provided a general discussion of the business activities of the beneficiary's foreign 
employer, that discussion did not include any information as to the beneficiary's duties abroad. 
On October 20, 2005, 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 during 
her employment abroad and in the proposed position in the United States: 1) a list of the job duties the 
beneficiary performed abroad as well as a percentage of time assigned to each job duty explaining how the 
beneficiary's job duties abroad were primarily within a qualifying managerial or executive capacity, noting 
that if the petitioner asserts that the beneficiary was employed as a manager and executive, it has the burden 
of meeting the criteria of both statutory definitions; 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; 3) the job titles and description of duties of 
the beneficiary's subordinates; and 4) a number of the petitioner's tax documents. 
In response, counsel submitted a letter dated January 12,2006 addressing the director's concerns. With regard 
to the beneficiary's position abroad, counsel stated the beneficiary occupied the position of chief executive, 
which was at the top of the foreign entity's hierarchy. Counsel provided the following information concerning 
the beneficiary's past and continued responsibilities with regard to the foreign entity: 
[The beneficiary] was (and continues to be) ultimately responsible for the operational success 
of the company, for planning and initiating corporate changes and long range planning 
(including having made the decision to open a U.S. office), and for supervising area managers 
and other employees so the company remains a successful enterprise. 
Counsel further stated that the beneficiary continues to cany out her responsibilities to the foreign entity via 
telecommunication with her foreign subordinates. 
With regard to the beneficiary's prospective employment with the petitioning entity, counsel stated that the 
beneficiary would continue to supervise professional employees and claimed that the beneficiary's duties 
would continue to be primarily within an executive and managerial capacity. Counsel stated the following: 
She will continue having overall operational control and responsibility for the enterprise(s), 
including hiring, firing, and direction of personnel, defining corporate policies in relation to 
business expansion and methods, meeting with clients and vendors and negotiating and 
entering into agreements on behalf of the company, servicing as the company(ies) [sic] legal 
representative before governmental authorities, and other executive and managerial level 
responsibilities. As a result, she presently devotes nearly 100% of her time to executive or 
managerial level duties and she will continue to do so in the future. 
In further support of the petitioner's claims of eligibility, counsel provided copies of the regulatory definitions 
for managerial and executive capacity as those terms are defined in 8 C.F.R. 3 204.5('j)(2), which pertains to 
the Form 1-140 immigrant petitions, and 8 C.F.R. 3 214.2(1)(l)(ii), which pertains to Form 1-129 
nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See §fj 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 3 1101(a)(44). However, it should be noted that, in general, given the permanent 
nature of the benefit sought, immigrant petitions are given far greater scrutiny by Citizenship and Immigration 
Services (CIS) than nonirnrnigrant petitions. 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 $9 204 and 214 of the Act, 8 U.S.C. 93 1154 and 1184; see also 3 316 of the Act, 8 U.S.C. 3 1427. 
Furthermore, 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 at 22; Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). As such, counsel's 
submission of an interoffice memorandum regarding extension of petition validity for petitioners with 
previously approved nonimmigrant petitions does not apply in the instant matter, where CIS seeks to 
determine the petitioner's eligibility for an immigrant petition, which, if approved, would enable the 
beneficiary to reside permanently in the United States and perhaps obtain U.S. citizenship. 
Moreover, 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 nonimrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
Page 6 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Additionally, the petitioner provided the following list of the beneficiary's responsibilities: 
Management, [pllanning, and [slupervision of the organization's plans and projects; 
Definition and determination of strategies to follow to reach corporate objectives [and] 
goals; 
Market [alnalysis to determine which media and tools to use to further consolidate the 
company and for the successful implantation of our goods and services to commercialize; 
Negotiate and enter into business agreements with providers; 
Hiring and management of sales personnel; 
Supervision of administrative and accounting management. 
The AAO notes that despite the director's specific request, the petitioner failed to provide a list of duties 
accompanied with percentage breakdowns for the beneficiary's position with the foreign entity and did not 
attribute a percentage breakdown to any of the above listed responsibilities regarding the beneficiary's 
prospective employment in the United States. 
With regard to the director's request for various tax documentation, the petitioner provided its quarterly wage 
report for the third quarter of 2005, which includes the time period of the petitioner's Form 1-140 filing. The 
quarterly report indicates that at the time the petition was filed, the petitioner employed the beneficiary on a 
full-time basis, while the remainder of its staff, including a sales manager, an administrative assistant and a 
marketinglsales strategist, was employed on a part-time basis. 
On January 24, 2006, the director denied the petition concluding that the petitioner failed to provide the 
requested information specifically identifying the beneficiary's duties with regard to her prior position abroad 
and her prospective position in the United States. The director also noted that the quarterly pay records the 
petitioner submitted indicate that the beneficiary is the petitioning organization's only employee earning full- 
time wages.' The director questioned the petitioner's ability to relieve the beneficiary from having to perform 
primarily non-qualifying tasks given the fact that the beneficiary's entire support staff is comprised of 
individuals that are employed on a part-time basis. 
On appeal, counsel provides a more detailed list of the beneficiary's responsibilities with the foreign entity 
and a percentage breakdown of the beneficiary's proposed duties in the United States. The AAO notes that 
despite the director's specific request in the RFE to provide this crucial information, the petitioner failed to do 
so and instead offers the information on appeal. It is noted, however, that the failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
1 
 The AAO notes that the minimum wage in the state of Florida in 2005 was $6.40 per hour, which requires that a full- 
time employee receive at least $3,072 per quarter, assuming that each quarter consists of at least 12 weeks. 
Page 7 
tj 103.2(b)(14). Furthermore, where, as here, a petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence 
offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be 
considered, it should have submitted the documents in response to the director's request for evidence. Id. 
Under the circumstances, the AAO need not and does not consider the sufficiency of the additional 
information regarding the beneficiary's duties abroad or the percentage breakdown of the U.S. duties, all of 
which the petitioner failed to provide in response to the director's specific request for such information. 
Accordingly, the AAO concludes that the petitioner's failure to provide sufficient information regarding the 
beneficiary's specific job duties abroad precludes the AAO from affirmatively concluding that the beneficiary 
primarily performed duties of a qualifying nature during her employment abroad. 
Aside from the percentage breakdown and foreign job description, which will not be considered in this 
proceeding, the petitioner provided the following supplemental list of responsibilities to be carried out by the 
beneficiary during the course of her employment in the United States: 
1. 
 Acts in behalf of the [clorporation in [glovermental acts and obligations[.] 
2. 
 Settles formal agreements with people, public and private corporations, andlor financial 
services in order to assure the company operation. 
3. Establishes policies about the best use of [qinancial [rlesources and [mlaterial of 
the[c]orporation. 
4. 
 Recruits, hires and approves personnel[.] 
5. 
 Supervises and manages all operations within the [c]orporation[.] 
6. 
 Establishes [olbjectives and defines goals in each operational area[.] 
7. 
 Organizes tasks, activities and employees' roles[.] 
8. 
 Motivates and communicates to all employees[.] 
9. Has full supervisory control over employees. Supervises, evaluates and develops 
employees. 
10. 
 Handles and keeps [clonfidential [i]nformation[.] 
11. 
 Reports performance results to the [bloard of [dlirectors. Processes and maintains all 
records regarding revenues and provides reports to [the] [bloard of [dlirectors. 
Despite the petitioner's submission of additional evidence with regard to the beneficiary's proposed 
employment in the United States, the petitioner has failed to provide sufficient evidence to establish that the 
beneficiary's duties would be primarily managerial or executive. 
First, the petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. Rather, throughout the record, the AAO has established numerous instances where either counsel or 
the petitioner refer to the beneficiary's employment capacity as either a combination of managerial and 
executive or managerial or executive. Neither counsel nor the petitioner appears to have made a distinction 
between the two terms; nor is there any clarification as to how the beneficiary's duties meet each of the prongs 
of the statutory definitions. 
Next, counsel fails to address the director's valid concern regarding the petitioner's primarily part-time support 
staff at the time the Form 1-140 was filed. While the AAO acknowledges that the question of the petitioner's 
eligibility cannot rest entirely on the size of its support staff, the fact remains that the beneficiary's 
responsibilities clearly suggest that a support staff is needed in order to assist the beneficiary in successfully 
executing her job duties, whatever they may be. The petitioner has not fully explained how a part-time 
support staff can relieve the beneficiary from having to engage in performing primarily non-qualifying tasks. 
It is noted 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 International, 19 I&N Dec. at 604. 
While the petitioner has not adequately addressed the director's request for a specific list of duties, the broad 
statements that were used to describe the beneficiary's proposed employment in the United States suggest that 
the beneficiary would perform a number of non-qualifying duties including performing market analysis, 
meeting with clients and vendors, and negotiating contracts. In light of the petitioner's failure to specifically 
list the beneficiary's duties and indicate the percentage of time the beneficiary would devote to each duty, the 
AAO cannot determine which duties would consume the primary portion of the beneficiary's time and 
whether such duties fit the definition of managerial or executive capacity. See section 101(a)(44)(A) of the 
Act. 
Additionally, the petitioner has named four sales representatives in its organizational chart and claims that all 
four individuals work on a commission basis as contracted employees. However, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, 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. 5 204.50)(5). As properly pointed out in the director's 
decision, specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, affd, 905 F.2d 41 (2d. Cir. 1990). In the 
instant matter, while the petitioner provides broad descriptions of job responsibilities, which generally 
indicate that the beneficiary's discretionary authority fits the definition of managerial or executive capacity, 
these definitions are meant to serve only as guidelines to be applied to a specific list of duties. Where, as in 
the instant case, the petitioner fails to provide CIS with a specific list of duties, a determination cannot be 
affirmatively made that the beneficiary primarily performs qualifying tasks. 
Page 9 
Accordingly, based on the evidence furnished, it cannot be found that the beneficiary has been employed 
abroad or will be employed in the United States in a primarily qualifying managerial or executive capacity. 
For these reasons, the petition may not 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 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.