dismissed EB-1C Case: Marketing And Sales

ident&hg data deleted to 
prevent clear1 y unwarranted 
invasion of pemonal privacy 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: JAN 2 4 2~ 
WAC 04 170 51201 
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. § 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. 
obert P. Wiemann, Director 
Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
i 
The petitioner is a corporation organized in the State of California in September 2001. The petitioner markets 
and sells metallized and coated films, paper, board, and metallic yarn. It seeks to employ the beneficiary as 
its president. 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. 
tj 1 1 53(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner had not established that the beneficiary would be employed in a 
primarily managerial or executive capacity for the United States petitioner. 
On appeal, counsel for the petitioner asserts: that the director erred when determining that the beneficiary 
would not occupy a managerial position; that the director mistook the job duties of an employee supervised 
by the beneficiary for the beneficiary's job duties; and, the director erred when concluding that the 
beneficiary's subordinates were not professionals. 
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 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 that indicates that the alien is to be employed in the United States in a managerial or executive 
Page 3 
capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
0 204.5Cj)(5). 
The issue in this proceeding is whether the beneficiary will be employed in a managerial or executive 
capacity for the United States entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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; 
. . 
11. 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; 
... 
111. 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 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. exercises wide latitude in discretionary decision making; and 
Page 4 
iv. receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In a May 17, 2004 letter appended to the petition, the petitioner indicated that the beneficiary as president 
would spend 50 percent of his time performing general management activities which included overseeing 
overall operations and setting polices and procedures for: 
Professional staff management, hiring and firing employees; 
Business development, marketing and expanding the organization by effectively marketing 
metallized and coated film, yarn and boards; 
Directing management staff to coordinate with consultants, customers, vendors and the 
production center in the Indian company to effectively translate the needs of customers into 
deliverable products. 
The petitioner indicated that the beneficiary would spend 25 percent of his time on financial management 
which included "[sletting the budget for expenditure and monitoring the performance and profitability of the 
company; [sletting and implementing policies to control overhead costs[.]" The petitioner further indicated 
that the beneficiary would spend the remaining portion of his time (25 percent) on personnel training which 
included "[d]evelop[ing] a training program for employees to improve their skills; [hliring technical 
consultants, who are industry experts to augment the company's know-how as well as train employees." 
The petitioner also provided an organizational chart depicting the beneficiary as president and chief executive 
officer. The chart showed the positions directly subordinate to the beneficiary as business development 
manager, finance and strategy manager, and an operations manager's position to be filled June 2004. The 
petitioner also listed an associate business development manager and six sales engineers (agents) subordinate 
to the position of business development manager and an administrative associate and independent contractors 
performing accounting, payroll, cleaning, and forwarding duties subordinate to the position of finance and 
strategy manager. 
The petitioner further provided a list of employees by name and degree and brief description of their job 
duties for the petitioner. The petitioner indicated that the president, the beneficiary's position, was responsible 
for profit and loss, made investment decisions, created and managed personnel policy including hiring, 
strategized the vision for the company's growth including alliances and joint ventures, interacted with industry 
players, and managed key customer relations; the finance and strategy manager managed financial and 
corporate issues and assisted the president on joint ventures and alliances; the operations manager, who would 
join the company in June 2004, managed all operations, the supply-chain, and coordinated with the parent 
company for supplies; the business development manager managed product and market development, 
managed and coordinated the sales engineers team, and managed customer relations; the business 
development associate assisted the manager in business development and coordinated the day-to-day sales 
activities; the administrative associate fulfilled administrative functions, performed data entry, and performed 
accounting related activity; and, the sales engineers procured orders on a commission basis, generated product 
development ideas, developed a customer base in their respective regions, and provided timely feedback on 
quality issues. 
On January 28, 2005, the director requested, among other things: (1) a more detailed description of the 
beneficiary's duties in the United States, including a "typical day" job description; (2) the petitioner's 
California Form DE-6, Employer's Quarterly State Wage Report, for the second quarter of 2004, the quarter 
in which the petition was filed; and, (3) the petitioner's organizational chart describing its managerial 
hierarchy and staffing levels, as of the date of filing the petition which should include the names of all 
executives, managers, supervisors, and number of employees within each department or subdivision and a list 
of all employees under the beneficiary's supervision by name, job title, education, and brief description of job 
duties. 
In an April 16, 2005 response, counsel for the petitioner stated that the petitioner employed 12 professional 
workers including six contractors and that the beneficiary supervised eleven professional individuals. 
Counsel also added more details to the description of job duties for each of the beneficiary's subordinates. 
Counsel indicated that the finance and strategy manager, a full-time employee, assisted in the preparation of 
annual budgets and cash flow projections, managed vendor relations, oversaw preparation and processing of 
accounts payable, managed customer billing relationships and processed accounts receivable, as well as 
managing banking relationships, accounts, and customer and sales order reports. Counsel indicated that the 
operations manager, a full-time employee, coordinated with the parent company for supplies, provided an 
uninterrupted flow of materials, supplies, and services, managed inventory levels, developed productive 
worlung relationships with vendors and retailers, and internal departments, analyzed and negotiated contracts 
with suppliers, manufacturers and distributors, integrated technology in the supply chain, and scheduled the 
transportation and logistics of product and service to final destinations. Counsel indicated that the business 
development manager, also a full-time employee, prepared, reviewed, and managed customer contracts and 
product pricing, developed and implemented business plans, monitored and supported strategic sales 
opportunities, communicated product management strategies to the field, established appropriate market 
pricing, worked with the marketing organization to develop and communicate market intelligence, and 
developed specific penetration strategies and product opportunities. Counsel indicated that the business 
development associate, a hll-time employee, identified strategic sales opportunities, communicated with the 
sales engineers, assisted in putting together business and marketing plans, and performed any activities 
appropriate to sales and business development. Counsel indicated that the administration associate performed 
accounting related activity, managed office equipment and correspondence filing, performed administrative 
tasks for the office management, and performed data entry duties. 
Counsel indicated that the finance and strategy manager held a master of business administration and 
engineering degree, the operations manager held a master of business administration, the business 
development manager held a master's degree, the business development associate held an engineering degree, 
the administration associate held an engineering degree, and the six contractual sales engineers held bachelor 
degrees with technical, commercial, and marketing knowledge of the petitioner's industry's products. 
Counsel asserted that the beneficiary supervised three managers who in turn supervised other employees and 
contractors. Counsel claimed that the operations, business development, and finance managers performed 
complicated tasks including financial management, market research analysis, and business development, tasks 
that could not be performed by unqualified and untrained personnel. Counsel contended that the tasks 
performed by the individuals subordinate to the beneficiary were complex in nature, making the positions 
Page 6 
professional positions. Counsel submitted copies of electronic mail correspondence between the beneficiary 
and several contractors for the 2002 and 2003-time period. Counsel indicated that the beneficiary assigned 
the contractors work and closely supervised their day-to-day functioning and that the electronic mail 
demonstrated the complexity and specialty nature of the tasks performed by the contractors. Counsel also 
included a study commissioned by the beneficiary and a non-disclosure agreement and electronic mail from 
the beneficiary regarding a product development opportunity. Counsel concluded that the evidence provided 
established that the beneficiary managed a subordinate staff of professional workers who performed duties at 
a professional level. 
Counsel also provided essentially the same job description of the beneficiary's duties and the same 
organizational chart as submitted with the initial petition. Counsel claimed that the beneficiary occupied a 
senior level position in the managerial hierarchy overseeing professional people. Counsel also noted that 
some of the beneficiary's direct subordinates were also managers who oversaw others. 
The petitioner submitted its California Form DE-6, Employer's Quarterly State Report of Wages Paid to Each 
Employee, for the second quarter of 2004. The California Form DE-6 showed that the petitioner employed 
five individuals, including the beneficiary, in the quarter in which the petition was filed. The names of the 
four individuals listed on the California Form DE-6, in addition to the beneficiary, corresponded to the 
positions of business development manager, financial and strategy manager, business development associate, 
and administration associate. The California Form DE-6 showed that the individual in the position of 
business development manager received $2,500 in salary for the quarter, the financial and strategy manager 
received $2,000 in salary for the quarter, the business development associate received $1,500 in salary for the 
quarter, and the administrative associate received $1,800 in salary for the quarter. The California Form DE-6 
did not list the individual in the position of operations manager. The petitioner also provided several sales 
agency contracts entered into in 2002, 2003, and January 2004 with companies to procure orders for the 
petitioner's products. 
On May 18, 2005, in a poorly articulated decision, the director denied the petition. The director erroneously 
recited the job description for the petitioner's financial and strategy manager, rather than the job description 
provided for the beneficiary when determining that the beneficiary's job description did not establish that the 
beneficiary primarily directed the management of the organization, established the company's policies and 
goals, exercised wide latitude in discretionary decision-making or maintained autonomy over the petitioner's 
operations. The director concluded without discussion that it was reasonable to believe, based on the 
petitioner's organizational chart and employment of two managers and two associates as substantiated by the 
petitioner's California Form DE-6, that the beneficiary would assist with the day-to-day non-supervisory 
duties. The director did not clarify what duties he identified as non-supervisory but concluded that the 
performance of those menial tasks precluded the beneficiary from being considered an executive. 
The director also determined that the beneficiary's subordinates could not be deemed professionals because 
their positions are not so complex as to require individuals with a college degree, thus the beneficiary was at 
most a first-line manager who would not be supervising professional employees. The director also concluded 
that the beneficiary was not a "functional manager" because the petitioner had not shown that the beneficiary 
managed a function rather than performing the petitioner's routine operational activities. 
Page 7 
On appeal, counsel for the petitioner asserts that Citizenship and Immigration Services (CIS) based its denial 
on an erroneous assumption of the beneficiary's job duties. Counsel notes the director's misstatement of the 
beneficiary's job duties and contends that the director's careless misreading of the petition is gross error. 
Counsel claims: that the beneficiary occupies a senior level position over professional employees as depicted 
on the organizational chart provided; that the beneficiary has responsibility for the operations of the company 
and has authority to hire, promote, and fire employees as substantiated by appointment and promotion letters 
sent to employees; that the beneficiary has signed contracts on behalf of the petitioner in the capacity of 
president as substantiated by contracts previously provided; and that the beneficiary oversees managers as 
well as professional personnel as substantiated by electronic mail containing communications from the 
beneficiary to the individuals he supervises and directs. 
Counsel concludes that the beneficiary's job duties establish that the beneficiary "fulfills the requirement for a 
managerial/executive function," noting that the beneficiary oversees 12 employees, delegating tasks to 
managers who in turn oversee others. Counsel contends that CIS has erred in not considering the evidence on 
record, has misapplied the law, and failed to consider relevant evidence in making its decision. 
Counsel specifically contends that CIS has failed to consider the petitioner's reasonable needs when arbitrarily 
determining that supervising only five employees is insufficient to support a finding of managerial capacity. 
Counsel points out that the director referred only to the employment of five individuals, failing to consider the 
petitioner's use of contractors. Counsel encloses evidence of payments to contractors to substantiate the 
petitioner's use of their services. Finally, counsel asserts that the beneficiary supervises three managers who 
in turn supervise other employees and contractors and that the beneficiary's subordinate staff is made of 
professional workers performing duties that are at a professional level. 
Preliminarily, the AAO notes that the director's decision was poorly articulated, consisting primarily of 
conclusory statements and an improperly recited description of the beneficiary's duties. Although the director 
in this matter failed to adequately discuss the deficiencies in the record, the director did point out the specific 
issues that indicate the beneficiary's ineligibility for this visa classification. The director determined: that the 
description of the beneficiary's duties was inadequate, although reciting the wrong description in the body of 
the decision; that the beneficiary's subordinates did not hold professional positions; and that the petitioner had 
not established that its organizational structure was sufficient to support an executive or managerial position 
who could devote the majority of his time to qualifying duties. The AAO finds that the petitioner had 
adequate notice to prepare an appeal to address these issues and that remanding the matter would serve no 
useful purpose. 
Counsel's assertions are not persuasive. The petitioner does not adequately clarify whether the beneficiary is 
claiming to be primarily engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily 
executive duties under section 101(a)(44)(B) of the Act. The AAO observes that the statute does not contain 
a position definition for an individual who "fulfills the requirement for a managerial/executive function." A 
beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the 
two statutory definitions. If the petitioner chooses to represent the beneficiary as both an executive and a 
manager, it must establish that the beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and the statutory definition for manager. 
Page 8 
When examining the managerial or executive capacity of a beneficiary, CIS reviews the totality of the record, 
including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the petitioner's 
business, the employment and remuneration of employees, and any other facts contributing to a complete 
understanding of a beneficiary's actual role in a business. The evidence must substantiate that the duties of the 
beneficiary and his or her subordinates correspond to their placement in an organization's structural hierarchy. 
Upon review of the record in this matter and as discussed firther below, the petitioner has not established that the 
beneficiary's duties and those of hs claimed subordinates elevate the beneficiary's position to a primarily 
managerial or executive position. 
The AAO observes that the record is inconsistent on a material issue. The petitioner shows on its 
organizational chart and in the description of the business development manager's job duties that the business 
development manager coordinates the sales engineers team. On appeal, counsel for the petitioner indicates 
that the beneficiary oversees the contractors (sales engineers) and assigns their duties. The petitioner's 
electronic mail substantiates that the beneficiary is the individual discussing the petitioner's products and 
coordinating the sale of the petitioner's products with third party contractors. The electronic mail suggests 
that it is the beneficiary who is responsible for the oversight and management of the petitioner's 
commissioned sales agents. Further, the salaries of the individuals employed as the business development 
manager and the finance and strategy manager show that these individuals were employed intermittently or 
part-time when the petition was filed, contrary to the petitioner's claim that these individuals were employed 
full-time. 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 of Ho, 19 I&N Dec. 
582,591-92 (BIA 1988). 
In addition, the AAO observes that the record does not establish when the operations manager was hired.' 
The record does not contain evidence establishing that the operations manager was, in fact, hired in June 
2004. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, the AAO must conclude that 
the beneficiary would necessarily be performing the non-qualifying duties of the operations manager, such as 
obtaining supplies, materials, managing inventory, working with vendors and retailers, negotiating contracts, 
and arranging the logistics of transportation, when the petition was filed. 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. Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
I The record contains a letter to an individual with the same name as the operations manager identified on the 
employee list, proposing employment to begin in September 2002 for a total of 15 hours per week. The 
petitioner's California Form DE-6 for the fourth quarter of 2002 confirms the part-time or intermittent 
employment of this individual during that time period. This information is inconsistent with the petitioner's 
organizational chart showing that the operations manager position will be filled in June 2004, after the 
petition was filed. 
Further, the petitioner's descriptions of the beneficiary's duties and the duties of the finance and strategy 
manager contain overlapping detail. For example, the beneficiary spends 25 percent of his time on financial 
management, including setting the budget, maintaining profit and loss, and implementing policies to control 
cost; while the finance and strategy manager also manages the company's finances and corporate issues, and 
assists with the annual budget and cash flow. The petitioner has not adequately delineated the duties of the 
beneficiary and the finance and strategy manager so that the actual duties associated with each position are 
clearly defined. 
The above inconsistencies and omissions undermine the petitioner's implicit claim that the beneficiary is 
relieved from performing primarily supervisory duties. Contrary to counsel's contention, the record does not 
establish that the beneficiary's subordinates' positions require individuals with knowledge, not merely skill, of 
an advanced type in a given field. When evaluating whether the beneficiary manages professional employees, 
the AAO must focus on the level of education required by the position, rather than the degree held by 
subordinate employee. Upon review of the position descriptions of the beneficiary's part-time or intermittent 
subordinates, the position descriptions do not contain sufficient detail to conclude that the positions require 
professional degrees. For example, the finance and strategy manager assists in preparing budgets, is involved 
with vendor relations, processes accounts receivable and payable, and handles banlung relationships and sales 
orders reports. This description is general and does not clarify how performing the duties requires an 
individual with an advanced degree rather than an individual who has basic skills at performing operational 
tasks. Likewise, the duties of the petitioner's business and development manager involve contact with 
customers, identifying sales opportunities, establishing pricing and other strategies. Again, this is a broad 
position description that does not sufficiently define how the duties of the position require an individual with 
a bachelor's degree rather than an individual with sales and marketing skills. Although the petitioner indicates 
on its organizational chart that both the finance and strategy manager and the business development manager 
manage or oversee subordinate employees, the job descriptions for these "managers" do not include any 
supervisory duties. The descriptions provided do not adequately delineate how the part-time or intermittent 
employment of these individuals relieves the beneficiary from performing primarily supervisory duties. 
The evidence must substantiate that the duties of the beneficiary and his or her subordinates correspond to 
their placement in an organization's structural hierarchy; artificial tiers of subordinate employees and inflated 
job titles are not probative and will not establish that an organization is sufficiently complex to support an 
executive or manager position. In the present matter, the totality of the record does not support a conclusion 
that the beneficiary's subordinates are supervisors, managers, or professionals. Instead, the record indicates 
that the beneficiary's subordinates intermittently perform the actual day-to-day tasks of operating the 
company. The petitioner has not provided evidence of an organizational structure sufficient to elevate the 
beneficiary to a supervisory position that is higher than a first-line supervisor of non-professional employees. 
Pursuant to section 101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily 
managerial or executive under the statutory definitions. 
The record does not substantiate that the petitioner employed sufficient personnel to relieve the beneficiary 
from performing the non-qualifying duties of a first-line supervisor of non-professional positions of the sales 
engineers and the individuals employed in part-time or interment positions. Although the beneficiary is not 
required to supervise personnel, if it is claimed that his duties involve supervising employees, the petitioner 
must establish that the subordinate employees are supervisory, professional, or managerial. See 
j 10 1 (a)(44)(A)(ii) of the Act. 
Finally, the petitioner provides an overly broad description of the beneficiary's duties. 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. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 
(2d. Cir. 1990). The director requested a more detailed description of the beneficiary's duties including a "typical 
day" description. The petitioner failed to provide a response to this request. 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@)(14). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See $ 101(a)(44)(C) of the Act, 8 U.S.C. $ 1101(a)(44)(C). In addition, the AAO acknowledges that the 
director should have more articulately discussed the beneficiary's duties and how the description failed to 
establish that the beneficiary's duties would be primarily managerial or executive. However, the totality of 
the record in this matter raises questions regarding the legitimacy of the beneficiary's position. Upon review, 
the description of the beneficiary's duties, the petitioner's type of business when the petition was filed, the 
petitioner's organizational chart, and the absence of evidence confirming the employment of individuals other 
than in a part-time or intermittent capacity, cast doubt on the legitimacy of the petitioner's offer of 
employment in a managerial or executive capacity. 
Further, 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). The size of a company may be especially relevant when CIS notes discrepancies in the record and 
fails to believe that the facts asserted are true. Id. If CIS fails to believe that a fact stated in the petition is 
true, CIS may reject that fact. Section 204@) of the Act, 8 U.S.C. $ 1154(b); see also Anetekhai v. I.N.S., 876 
F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). In this matter, the AAO finds that the 
petitioner's description of the beneficiary's duties does not show a realistic relationship with the nature of the 
petitioner's business and the necessary number of personnel hours to operate the company's business. 
Furthermore, 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 performance of the pragmatic duties of overseeing service 
personnel or performing the administrative and operational tasks necessary to supervise and sell the 
petitioner's products. Again, 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. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 101(a)(44). The reasonable needs of the petitioner cannot 
excuse a beneficiary who spends the majority of his time on non-qualifying duties. 
Upon review of the totality of the record the petitioner has not provided evidence that it employs a sufficient 
number of employees (whether part-time or full-time) to relieve the beneficiary from performing primarily 
non-qualifying duties. The statute continues to require that an individual "primarily" perform managerial or 
executive duties in order to qualify as a managerial or executive employee under the Act. The word 
"primarily" is defined as "at first," "principally," or "chiefly." Webster's II New College Dictionary 877 
(2001). Where an individual is "principally" or "chiefly" performing the tasks necessary to produce a product 
or to provide a service, that individual cannot also "principally" or "chiefly" perform managerial or executive 
duties. In this matter, when the petition was filed, the record demonstrates that the beneficiary performed 
primarily non-qualifying duties, including the duties of a first-line supervisor over non-professional 
employees. 
The facts provided in this matter, including the description of the beneficiary's duties, the lack of evidence 
substantiating the employment of sufficient personnel to relieve the beneficiary from performing operational 
and administrative tasks, the description of the beneficiary's subordinates' duties, and the nature of the 
petitioner's business when the petition was filed do not establish the beneficiary's eligibility for this visa 
classification. 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
petitioner will comprise primarily executive or managerial duties. For this reason, the appeal will be 
dismissed. 
The AAO acknowledges that CIS approved other petitions that had been previously filed on behalf of the 
beneficiary. With regard to the similarity of the eligibility criteria, the AAO acknowledges that both the 
immigrant and nonimrnigrant visa classifications rely on the same definitions of managerial and executive 
capacity. See $8 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 9 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 $9 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also $ 316 of the 
Act, 8 U.S.C. $ 1427. 
In general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimrnigrant petitions. Accordingly, many Form 1-140 immigrant petitions are denied after CIS 
approves prior nonimmigrant Form 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because CIS spends less time reviewing 
Form I- 129 nonimmigrant petitions than Form I- 140 immigrant petitions, some nonimmigrant L-1 A petitions 
Page 12 
are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. 
tj 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A petition's 
validity). 
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. § 103.8(d), 8 C.F.R. 
tj 103.2(b)(16)(ii). The approval of a nonimmigrant petition does not guarantee that CIS will approve an 
immigrant petition filed on behalf of the same beneficiary. As the evidence submitted with this petition does 
not establish eligibility for the benefit sought, the director was justified in departing from previous 
nonimmigrant approvals by denying the immigrant petition. 
In addition, 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). 
Further, 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). The petitioner has not provided evidence or argument on appeal 
sufficient to overcome the director's decision. 
Finally, the AAO observes that as the director was justified in departing from the previous nonimrnigrant 
approvals in this matter; the director should review the previous nonimmigrant approvals for revocation 
pursuant to 8 C.F.R. tj 214.2(1)(9)(iii). 
The petition will be denied for the above stated reason. 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. tj 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.