dismissed EB-1C Case: Musical Instrument Distribution

(b)(6)
DATE: FEB 1 4 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER . 
U.S. Departliient of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., 
N.W., MS 2090 
Washington, DC 20529-2090 
FILE : 
PETITION: ImmigrantPetition 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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, ·Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do ·not file any motion 
directly with the AAO. Please be aware that 8 C.f:.R. § 103.5(a)(l)(i) requires any motio~ to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thfo"j __ . 
· ~ 
/._Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)Page2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The petitioner filed an appeal. The matter is now before the Administrative Appeals Office 
. (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida limited liability company that seeks to employ the beneficiary as its 
president. Accordingly, the petitioner endeavors .to classify the beneficiary as an employment­
based immigrant pursuantto section 203(b)(l)(C) of the, Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
On March 2, 2012 the director denied the petition concluding that the petitiOner failed to 
establish that it would employ the beneficiary in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the director failed to adequately consider the petitioner's evidence 
and erred in the interpretation of the law primarily because the petitioner had already received 
two approvals granting the beneficiary L-lA nonimmigrant classification for the same position. 
Counsel submits a legal brief in support of the appeal. 
I. The Law 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be rriade available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Certain Multinational Executives and Manage~s. -- An alien is described in 
this subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
subparagraph, has been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the 
United States in order to continue to render services to the Same employer or to a 
subsidiary or affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or 
managers who have previously worked for a fi~, 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 et:nployer may file a petition on Form I-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 iri the United States must furnish a job 
(b)(6)
I . 
Page3 
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 per~ormed by the al~en. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial ·capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or ·a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or rpanagerial 
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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(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 t_ 
(iv) receives only general supervision or direction from higher level executives, the 
board of directors', or stockholders of the organization. 
II. Employment in a Managerial or Executive Capacity 
(b)(6)
Page4 
The petitioner filed the immigrant visa petition (Form I-140) on March 28, 2011. The petitioner 
·· asserted that the beneficiary would be serving in a managerial or executive capacity as president 
of the company. The petitioner states that it distributes musical instruments and engages in 
property management with four (4) employees and a gross animal income of $554,792.00. In 
support of the ·petition, petitioner submitted a letter dated February 21, 2011 signed by the 
president ·explaining his job responsibilities as follows: 
1) Been responsible for the .. day-to-day operations of the company, including 
inventory and sales; 2) Performed market research to investigate new distribution 
. possibilities; 3) Overseen the development cif creatiye marketing and sales 
programs to promote business; and 4) Been responsible for all personnel 
decisions, including the contracting independent contractors. 
As President, [the beneficiary] fulfills all company operational requirements. He 
is responsible for all hiring and firing of personnel, organizing and· determining 
sales territories and quotas, etc. He is also responsible for compliance with all 
governmental regulations, shipping options, customs clearances, and proper 
record keeping. 
The petitioner provided copies of the beneficiary's IRS Form W-2, Wage and Tax Statement, 
issued to the beneficiary for 2010; the IRS·Form 941 Employer's Quarterly Federal Tax Return 
for the 4
1
h quarter of 2010 indicating that the petitioner had three employees, and the Florida 
Form UCT-6, Department of Revenue Employer's Quarterly Report, reflecting wages paid to 
four employees during the fourth quarter of 2010. 
On November 17, 2011, the director issued a request for additional evidence (RFE) instructing 
the petitioner to provide evidence that the beneficiary's employment qualifies as either 
managerial or executive. Additionally, the director requested a breakdown of time the 
beneficiary would spend on his various duties. The director specifically requested that the 
petitioner provide the job title, job .duties, percentage of time spent on each duty, and educational 
. level for all employees 
reporting to the beneficiary' and further requested that the petitioner 
indicate the number of subordinate managers/supervisors subordinate to him. Further, if the 
beneficiary did not supervise other employees, the director requested the petitioner to specify 
what essential function within the organization the beneficiary manages. ' 
On February 7, 2012 and in response to the RFE, Co~nsel submitted a letter on behalf of the 
petitiOner. In paragraph four of the letter, counsel' explained that the beneficiary spends 
approximately 60% of his time on the following at both the U.S. and foreign company: 
• He prepares, creates and modifies the company's measurable goals, 
strategic plans and operations and objectives and determines the 
methodology to assess whether the company is making suitable progress 
towards achieving those goals and objectives (35% of 60% ); 
(b)(6)
PageS 
• For the overall corporation, determine necessary on-going funding for the 
U.S. company, developing a workable budget and assessing financial 
commitment of the parent company and determines financial assessments 
for the foreign company (25% of the 60% ); 
• For the overall corporation, work with business brokers, attomeys, real 
estate agents and other professionals to seek out potential business 
opportunities and review proposals, financials and due dilig~nce 
assessments to determine feasibility of additional investments (20% of the 
60%); 
• For the overall corporation, ultimately 
determines the direction of the 
company, reports to the parent company on suitability ·Of its subsidiary 
venture and makes and executes decisions to enable additional 
acquisitions and management (20% of the 60% ); 
· • For the first business activity in the US, the Beneficiary spends 
approximately 40% engaged in the following duties: 
o Conduct needs assessment and determine appropriate staffing 
levels the [sic] recruit, hire and train staff ( 40% of the 40% ); 
o Establish policies, processes and procedures for the d~y~to-day 
business operations and oversee their implementation (30% of the 
40%); 
o Assess historical advertising and marketing activities, determine 
necessary actions and calculate budgetary requiren'ients and 
authorize expenditures (15% of the 40%); 
o Negotiate contracts to obtain ·optimal inventory and control costs, 
ensure compliance with all government agencies and ensure all 
licenses are adequately maintained (1 0% of the 40% ); 
o · Prepare reports, modify business plans and develop business (5% 
of the 40%) 
In the same letter, counsel included the following description of the beneficiary's duties: 
He is responsible for the day-to-day · operations of the company, including 
inventory and sales. He plans, develops and establishes policies and objectives to 
obtain optimum profitability and highest corporate gain. He directs the 
administration and infrastructure of the U.S. entity. He has complete control over 
all financial, administrative, personnel, marketing and sales decisions. He also 
coordinates new distributions possibilities, negotiates, finalizes and signs contract; 
analyzes costs and determines profit margins, tracks incoming funding and 
receivables; manages fundamental issues such as permits, legal affairs, contracts, 
and funding, insurance matters and is responsible for the development of creative 
marketing and sales programs to promote business. 
(b)(6)
Page6 
[The beneficiary] also oversees the supply and distribution of the company's 
energy. He establishes relations with suppliers and distributors. As an Executive, 
[the beneficiary's] duties are to ensure that the company would be successful in 
establishing and maintaining a. strong business presence in the United States. He 
is charged with using his business expertiSe to oversee the expansion of business 
interest. In the execution of the duties, he is empowered by the company to 
exercise wide latitude in all decision making and report only to himself as he is 
the sole owner of the company. 
Finally, counsel further offered the following regarding the percentage of time spent on each 
duty: 
As General Manager he executes the following executive duties: Specifically, 
approximately, 60% of the Beneficiary's time spends in the day-to-day operations 
which. consist of directing the administration and infrastmcture of the U.S. 
operation; formulating and setting all business policies and practices; managing 
the short and long ·term financial planning and investments; establishing 
relationships with retail stores, galleries and specialty toy stores and general 
public; planning promotional campaigns; preparing · marketing meetings with 
potential buyers; conducting all financial operaHons; and monitoring all 
expenditures, supplies and distributions. More specifically, of that 60%, the 
petitioner estimates about 20% is devoted to the development of creative 
marketing and sales programs to promote business, 30% is devoted on the review 
of inventory and sales, and the remaining 20% is devoted to billing, invoicing, 
tracking of shipments, insurance matters and reviewing of orders. The Beneficiary 
also spends a fair portion of his time in reviewing current practices, implementing 
new procedures and policies of its structure to improve the cost effectiveness and 
efficiency of . the company's operations and contribute to the· business 
development and success of the enterprise. 
The remaining 40% of the Beneficiary's time, outside of the 60% is devoted in 
marketing research activities to.establish and maintain a strong business presence 
in the United States. He identifies and ensures the development of new 
distribution opportunities; supervises organizational and business development for 
the logistical operations; oversees client and ·public relations; negotiates, finalizes 
and signs contracts; analyzes cost and determines profit margins; tracks incoming 
funds and receivables; consents to hire and terminate employees. The beneficiary 
dedicates time to resolve legal affairs and obtains all licenses and permits. 
Rather than providing the petitioner's organizational chart, the petitioner provided an undated list 
of five employees listing the beneficiary at the top as the General Manager. On the list, the 
petitioner named a property leasing manager, financial manager, product manager and a utility 
manager. Brief duties for each position were .listed on subsequent pages. Education 
requirements were not provided ·for any ofthe positions. No additional employees were noted. 
(b)(6)Page7 
The petitioner provided a Form 941, Employer's Quarterly Federal Tax Return, for the first 
quarter of 2011 which reflected only three employees receiving pay during that period. 
According to the petitioner's general ledger dated November 2011, and its submitted payroll 
records, it appears the employees at the time of filing were the beneficiary, the product manager 
and the financial manager, who was paid $520 for.20 hours of work during the first quarter of 
2011. Based on the evidence submitted, the utility manager was paid in June 2011 and 
November 2011 only, and the property leasing manager waspaid for the first time in November 
2011. 
The product manager's duties are listed as: 
Search for products intended for expmt to the EU via the Internet 
Product surveys of retail outlets 
Marketresearch imports for its own products 
Assistant of General Manager 
Building of customer relationship 
The fmancial manager's duties are listed as: 
Accountant · 
Check-in purchase prices 
Billing 
Preparation of fmancial statements and tax returns 
Check payments 
Financial controlling 
Payroll 
The director denied the petition on March 2, 2012. The director determined the petitioner did not 
establish the beneficiary would be employed in a primarily managerial Qr executive capacity. 
The director concluded that the nature and size of the company did not appear to warrant the 
position for which the beneficiary was to be employed. Further, the director found that while 
some of the duties were managerial or executive in nature, other duties were closer to that of an 
accountant, a marketing agent or a sales representative. The director further found that the 
evidence was insufficient to establish that the beneficiary would supervise a subordinate staff 
comprised of managers, supervisors or professionals. 
On appeal, coun.sel asserts that the issue of whether the beneficiary is acting primarily in an 
executive capacity was already resolved by USCIS when it approved two previously filed L-1A 
classification nonimmigrant petitions filed on the beneficiary's behalf. Counsel also asserts that 
the petitioner's business "requires a high degree of sophistication and may not require extensive 
staffing in the U.S." Therefore, counsel requests that " [ 
i ]f staffing levels are to be used as a 
factor in determining whether an ~ndividual is acting in an executive capacity, the reasonable 
needs of the organization in light of the overall purpose of said organization shall be taken into 
account." Counsel cites several unpublished AAO opinions supporting her assertion that prior 
petitions were. approved bec~use the· multi-national executive was involved in very specialized 
(b)(6)
PageS 
business functions. However, counsel does not provide any examples or explanation as to what 
extensive knowledge and unique skills are required of the beneficiary in this position in order to 
support her claim that the beneficiary is performing a specialized busines~ function. 
Upon review, counsel's assertions are not persuasive. · 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. § 204.5(j)(5). Initially, the petitioner provided a short and very 
vague description of the beneficiary's duties offering little insight into what tasks the beneficiary 
would be performing on a day-to-day basis on behalf of the petitioner's instrument 
imports/property management business. Furthermore, some of the duties described appeared to 
be non-qualifying such as being responsible for the day-to-day operations including inventory 
and sales; performing market research; and being responsible for regulation compliance, 
shipping options, and record keeping. 
In response to the request for evidence, counsel for the petitioner offered an entirely new and 
expanded duty description which included a percentage of time allocated to different 
responsibilities. Nevertheless, the duties listed were still very broad and vague. For example, 
counsel asserted that the beneficiary would spend 21% of his time preparing, creating and 
modifying the company's measurable goals, strategic plans and operations and objectives and 
determining the methodology to assess whether the company is making suitable progress towards 
achieving those goals and objectives. Counsel failed to offer any specifics or details that would 
explain what actual tasks the beneficiary would perfonil. 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 failed to provide any 
detail or explanation of the beneficiary's activities in the course of his daily routine. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, in the same response for evidence, counsel offered an additional description of the 
beneficiary's duties which more closely resembled the description provided at the time of filing 
and suggested that the beneficiary will perform primarily non-qualifying duties. For example, 
counsel stated that the beneficiary allocates 40 percent of his time to marketing research 
activities, and spends the majority of his remaining time on .creating marketing and sales 
programs, "review of inventory arid sales," and "billing, invoicing, tracking of shipments, 
insurance matters and reviewing of orders." These duties bear little resemblance to the above­
referenced position description contained in the very same letter. The AAO is not in a position 
to determine which of the varied position descriptions submitted most closely. represents the 
beneficiary's actual duties. ·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). 
(b)(6)Page9 
A review of these descriptions suggests that the beneficiary is seemingly responsible for every 
aspect of this business. For example, despite claiming to have a financial manager, the 
beneficiary is expected to determine ongoing funding and establish a budget, assess financial 
needs, analyze costs, determine profit rpargins, track incoming funding and receivables, 
complete billing and invoicing, and he has complete .control over all financial operations. Based 
on the various confliCting position descriptions in the record, the AAO is unable to determine 
whether the claimed executive duties constitute the majority of the beneficiary's duties, or 
whether the beneficiary primarily performs non-managerial administrative or operational duties. 
The petitioner's description of the ·beneficiary's job duties does not credibly establish what 
proportion of the beneficiary's duties is managerial in nature, and what propor:tion is actually 
non-managerial. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
When examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and 
Immigration Services (USCIS) 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. 
Despite claiming four employees at the time of filing and submitting a list of ·five company 
employees, the . petitioner provided payroll and financial evidence for only- two full-time 
employees (including the beneficiary) and one part-time employee at the time 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'r 1971). At the time the petition was filed, the 
petitioner employed the beneficiary, a product manager and a part-time financial manager. The 
other two employees named in !esponse to the RFE were both claimed to perform duties related 
to the petitioner's property management 
business. The petitioner has not claimed that the 
beneficiary performs any duties related to this component of the business, but has also not 
established who would have been available to relieve him from performing such duties ·at the 
time the petition was filed. 
Furthermore, based on the documentation provided, it appears that the beneficiary was to be 
responsible for most aspects of marketing, sales, operations, and administration, all of which 
require the performance of non-qualifying duties. Specifically, the beneficiary was expected to 
engage in contracting, negotiations, establishing relationships with customers and buyers, and . 
most of the company's business administration. 1,\n 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 Sc~entology Intn'l., 19 I&N Dec. 593, 604 (Comm'r 1988). 
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 
(b)(6)Page 10 
multination~J manager or executive. See § 10l(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). 
However, it is appropriate for USCIS 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. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The size of a .company may be especially relevant when USCIS notes 
discrepancies in the record and fails to believe that the facts asserted are true, See Systronics, 153 
F. Supp. 2d at 15. 
As required by section 10l(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, USCIS must 
take into account the reasonable needs of the organization, in light of the overall purpose and 
stage of development of the organization. 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, counsel asserted that the petitioner engaged in a unique and specialized business 
but failed to provide any documentation or even an explanation to justify how the reasonable 
needs of the petitioning enterprise justify the beneficiary's performance of non-managerial or 
non-executive duties. Going on . record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proce~~ings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998). 
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 10l(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The reasonable 
needs of the petitioner may justify a beneficiary who allocates 51 percent of his duties to 
managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a 
beneficiary who spends the majority of his or her time on non-qualifying duties. 
In this matter, based on the various and broad based descriptions provided by the petitioner, and 
the petitioner's failure to corroborate its claimed staffmg levels, the record reflects that it is more 
likely thaJ? not the beneficiary himself handled most of the day.:.to-day operations associated with 
the petitioner's musical instrument and property management business, and relied on his one full­
time subordinate to provide assistance in carrying out his duties. The petitioner has not explained 
how one full-time employee and an intennittently employed part-time accountant/finance 
employee could reasonably relieve the beneficiary from primarily performing non-qualifying 
duties associated with the petitioner's business. 
Counsel refers to several unpublished decisions in whiCh the AAO determined that the 
beneficiary met the requirements of serving in a managerial and executive capacity despite the 
small size of the company or lack of staff. In this matter, counsel has furnished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decisions. 
(b)(6)
Page l1 
While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Counsel also cites National Hand Tool Corp. v. Pasquarell, 889 F.2d i472, n.5 (5th Cir. 1989) to 
stand for the proposition that the small size of a petitioner will not, by itself, undermine a finding 
' that a beneficiary will act in a primarily managerial or executive capacity. First, the AAO notes 
that counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in National Hand· Tool Corp., where the Fifth ·Circuit Court of Appeals 
decided in favor of the legacy Immigration and Naturalization Sel"Vice (INS). In National Hand 
Tool Corp. the court emphasized that the former INS should not place undue emphasis on the 
size of a petitioner's business operations in its review of an alien's claimed managerial or 
executive capacity. The AAO has long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size bl:lsinesses. However, consistent with both the 
statute and the holding of National Hand Tool Corp., the AAO has required the petitioner to 
establish that the beneficiary's position consists of primarily managerial or executive duties and 
that the petitioner will have sufficient personnel to relieve the beneficiary from performing 
operational and/or administrative tasks. Like the court in National Hand Tool Corp., we 
emphasize that our holding is based on the conclusion that the beneficiary is not primarily 
performing managerial or executive duties; our decision does not rest on the size of the 
petitioning entity. 889 F.2d at 1472, n.5. 
Additionally, in her brief, counsel cited the Foreign Affairs Manual (FAM) as an authority 
supporting the petitioner's argument. It must be noted that the FAM is not binding upon USCIS. 
See Avena v. INS, 989 F. Supp. 1 (D.D.C. 1997); Matter of Bosuego, 17 I&N Dec. 125 (BIA 
1979). The F AM provides guidance to employees of the Department of State in carrying out 
their official duties, such as the adjudication of visa applications abroad. The F AM is not 
relevant to this proceeding. 
It must also be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the consequences of 
an approved petition, there is a significant difference between a nonimmigrant L-1A visa 
classification, whiCh allows an alien to enter the United States temporarily, and an immigrant E-
13 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. Cf ᤤ 204 and 214 
of the Act, 8 U.S.C. §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. Because 
USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, 
some nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d at 29-30; see ·also 8 C.F.R. § 214.2(1)(14)(i)(requiring no supporting 
documentation to file a petition to extend an L.: 1A petition's validity). 
(b)(6)
.. . ... 
Page 12 
Despite any number of previously approved petitions, USCIS does not have any authority to 
confer an immigration benefit when · the petitioner fails .to meet its burden of proof in a 
subsequent petition. See section 291 of the Act. 
Accordingly, the appeal will be dismissed, as the petitioner has not established that the 
beneficiary would be employed in the United States in a primarily managerial or executive 
capacity, as required by section 203(b)(l)(C) of the Act. 
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. Here the petitioner had not met that burden. 
ORDER: The appeal is dismissed