dismissed EB-1C Case: Promotional Products

identifying data deleted to 
prevent clearly wwmted 
invasion of personal privacy 
U.S. Department of IIomeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Petition: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 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. 
., Robert P. Wiemann, ~hGf 
dministrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition. The petitioner appealed the decision to the Administrative Appeals Office (AAO). The AAO 
withdrew the director's decision and remanded the matter for further action, consideration, and entry of a new 
decision. The AAO ordered that the new decision be certified to the AAO for review. After requesting and 
receiving additional evidence, the director denied the petition and certified the decision to the AAO, which 
affirmed the director's decision. 
On February 9,2006, the petitioner was properly afforded 30 days in which to submit a brief and/or evidence 
in support of the certification proceeding. As of May 1, 2006, the date on which the AAO's unfavorable 
decision was issued, no additional evidence had been incorporated into the record of proceeding, and the 
AAO's decision was therefore based on the evidence that had already been reviewed by the director. The 
petitioner has now provided evidence that it did in fact submit a brief and evidence, along with a complete 
copy of its submission.' 
The AAO will therefore withdraw its May 1, 2006 decision and reopen the matter pursuant to 8 C.F.R. 5 
103.5(a)5)(ii) in order to consider the additional evidence submitted in support of the certification proceeding. 
The AAO will affirm the director's de~ision.~ 
The petitioner is an organization incorporated in the Commonwealth of Massachusetts in February 2001. It 
claims to provide promotional products and services to corporations. It seeks to employ the beneficiary as its 
managing 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. 
5 1 153(b)(l)(C), as a multinational executive or manager. 
' The AAO observes that the director's instructions included in the Form I-290C, Notice of Certification, 
dated February 9, 2006 were confusing and undermined the petitioner's ability to follow the appropriate 
procedure in submitting additional evidence in the certification proceeding. On the first page of the Form I- 
290C, the director properly advised the petitioner that the matter was being certified to the AAO, and that it 
had 30 days in which to submit a brief to the AAO. On page six of the Form I-290C, the director incorrectly 
advised the petitioner that it could appeal the decision by filing a Form I-290B, Notice of Appeal to the 
Administrative Appeals Unit, and instructed the petitioner to submit a completed Form I-290B with a filing 
fee of $385.00, to the Vermont Service Center within 33 days. The petitioner ultimately completed a Form I- 
290B and submitted it to the Vermont Service Center with the filing fee on March 14, 2006, 33 days 
following the director's decision, noting in its cover letter the confusion created by the instructions provided 
on Form I-290C. Due to the director's error, the petitioner's failure to submit additional evidence directly to 
the AAO within 30 days of the Notice of Certification will be excused as reasonable, and the documentation 
received by the Vermont Service Center on March 14,2006 will be considered herein. 
2 
 Pursuant to 8 C.F.R. 5 103.5(a)(5)(ii), on January 17,2007, the AAO advised the petitioner that the matter is 
being re-opened, and notified the petitioner that it had 33 days in which to submit a brief in support of the 
petition. The petitioner submitted a brief and additional documentary evidence on February 16,2007. 
The petitioner filed the immigrant petition on March 9, 2004. The director denied the petition on August 25, 
2004, without requesting further evidence. The director noted that the record did not include sufficient 
documentation to clearly establish that the beneficiary's managerial experience and education qualifies him as an 
executive/manager. In a decision dated June 7, 2005, the AAO withdrew the director's decision, remanded the 
petition to the director, and instructed the director to request additional evidence regarding the beneficiary's 
proposed employment capacity in the United States, as well as evidence related to the beneficiary's employment 
with a qualifying organizational abroad; evidence to establish that the petitioner had been doing business in the 
United States for one year prior to filing the instant petition; evidence that the petitioner had the ability to pay the 
beneficiary's proffered wage; and any other evidence she deemed necessary in order to determine the beneficiary's 
eligibility for the benefit sought. 
As instructed, the director issued a request for Mher evidence on July 28, 2005. The petitioner provided its 
response on October 19, 2005. The director denied the petition on February 9, 2006, determining: (1) that the 
petitioner had failed to establish that the beneficiary would be employed in either a managerial or executive 
capacity; (2) that the evidence of record did not clearly establish a qualifying relationship between the United 
States and foreign entities; and (3) that it was uncertain that the petitioner had sufficient physical premises to 
house a United States office as its office space is in the beneficiary's home. 
The director certified her decision to the AAO, and informed the petitioner that it could submit a brief to the 
AAO within 30 days after service of the notice. The AAO affirmed the director's decision to deny the petition 
on May 1, 2006. As noted above, the AAO's decision was made without the opportunity to review additional 
evidence submitted in support of the certifi cation proceeding. 
In the instant proceeding, the AAO will take into account the complete record of proceeding, including the 
petitioner's March 14, 2006 submission, and additional documentation submitted by the petitioner on 
February 16,2007 in response to the AAO's service motion to reopen. 
Section 203(b) of the Act states in pertinent part: 
(I) 
 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 Forrn 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 
capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
5 204.5 (j)(5). 
Prior to addressing the issues, the AAO must emphasize that the critical facts to be examined are those that 
were in existence at the actual time of filing the petition. It is a long-established rule in visa petition 
proceedings that a petitioner must establish eligibility as of the time of filing. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of lzurnrni, 22 I&N Dec. 169, 176 (Assoc. Comrn. 
1998). 
If the petitioner or beneficiary becomes eligible under a new set of facts, the proper course of action is to file 
a new petition. Despite the previous denial, there is no bar to the petitioner's filing of a new petition 
supported by new evidence of eligibility. 
The first issue in this matter is whether the petitioner established that the beneficiary would be employed by 
the United States entity in a managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 8 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
i. manages the organization, or a department, subdivision, function, or 
component of the organization; 
ii. 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
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 
Page 5 
iv. 
 exercises discretion over the day to day operations of the activity or function 
for which the employee has authority. A first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), 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; 
... 
111. 
 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. 
The immigrant petition was filed on March 9, 2004. In a December 28, 2003 letter appended to the petition, 
the petitioner offered a permanent executive position to the beneficiary as its managing director that 
commanded an annual salary of $75,000. The petitioner listed the position's duties and responsibilities as: 
Directing and controlling the corporate business through the implementation of the 
corporate business plan; 
Overseeing and directing the completion of new product development; 
Liaising with clients, distributors, Industry [sic] groups and vendors; 
Liaising with Marketing, Engineering, Manufacturing, Financial and human 
resources of corporate clients [sic]; 
Overseeing and monitoring all national and international contracts; 
Developing the Corporate Annual Plan; 
Developing of the Corporate Five (5) Year Plan; 
Overseeing and developing Corporate Budget Control; 
Overseeing product Quality Control; 
Planning and executing advertising policies; 
Formulating plans to create new accounts and maintain existing accounts; 
Planning and administering media programs; 
Conferring with product managers to establish media goals; and 
Studying demographic data and consumer profiles to identify target audiences[.] 
The petitioner provided its 2002 Internal Revenue Service (IRS) Form 1120, showing that the petitioner's 
officer was paid $35,000 and that no additional salaries were paid. The record also includes the beneficiary's 
IRS Form W-2, Wage and Tax Statement, issued by the petitioner, showing that the beneficiary was paid 
$35,000 for the 2002 year. 
The director denied the petition on August 25, 2004 without requesting additional evidence, concluding that 
the record did not establish that the beneficiary would function as an executive or manage a subordinate staff 
of employees who would relieve him from performing non-executivelnon-managerial duties for the United 
States entity. 
The director's decision was subsequently withdrawn by the AAO and remanded to the director, who issued a 
request for additiona1 evidence on July 28, 2005. Specifically, the director requested documentary evidence 
to establish that the beneficiary would be employed in an executivelmanagerial position in the United States, 
including evidence that the petitioner was paying its employees; evidence of the petitioner's staffing including 
the number of employees, their titles and the duties performed by each supe~sor/manager/executive; and a 
breakdown of the number of hours devoted to each of the beneficiary's job duties on a weekly basis. 
In an October 19, 2005 response, the chief financial officer of the foreign entity indicated that the petitioner 
did not employ any subordinate supervisors and referenced an unpublished decision and two federal court 
decisions in support of the proposition that a sole employee may be a manager or an executive if the petitioner 
utilizes outside independent contractors or where the business is complex. The foreign entity claimed that the 
petitioner outsourced its operations: to an accountant to handle administration; to crew recruitment services 
for camera operators, sound recorders, and teleprompter operators; to an equipment rental service; to an 
editing facility for video production support services; to two individuals for direct mail services; to various 
organizations for "fulfillment," printing, and electronic marketing; and to an individual for "creatives." 
The foreign entity noted that the beneficiary spent at least 90 percent of his time on executivelmanagerial 
duties including: 
Business strategy 10% 
Business development - acquisition 30% 
Financials - budgeting, control and reporting 
 5% 
Communication Director: 
Client Director 15% 
Executive Producer 10% 
Executive Publisher: 
Business Development and Financial control 10% 
Executive supervision of the operational partnerslout sourced services 10% 
The foreign entity indicated that the beneficiary spent 10 percent of his time on non-executive tasks, including 
making travel arrangements, five percent of the time, and on handling administration tasks not handled by the 
accountant, five percent of the time. The foreign entity also stated that the beneficiary's discretionary 
authority in the United States is without limitation. 
The foreign entity explained that the petitioner and the foreign entity provide corporate video communication 
services, including defining communication needs, developing communication strategies, creative treatments, 
and producing the related communication tools as well as providing marketing, communication, and 
publishing services to a magazine launched in 2003. The petitioner provided: copies of proposals made by 
the beneficiary in 2005 to provide video production services; consulting agreements dated February 23, 2005, 
May 13, 2005, and October 3, 2005; and a statement in its 2005 business report referencing the petitioner's 
on-line and off-line production and consultancy services to a magazine beginning in 2003 and generating a 
cumulative revenue of $100,000 for 2005. 
The director denied the petition on February 9, 2006, again determining that the record did not clearly 
establish that the beneficiary had been or would be employed in a primarily executive or managerial capacity, 
or that the petitioner could currently support such a position. The director presumed, based on the evidence in 
the record, that the beneficiary would be engaged primarily in the non-managerial, day-to-day operations 
involved in producing a product or providing a service. The director noted that an executive may manage a 
function but that the petitioner must demonstrate that the beneficiary does not directly perform the function. 
The director again noted that the record did not contain a comprehensive description of the beneficiary's 
duties or establish that the beneficiary would function as an executive or manage a subordinate staff of 
employees who would relieve him from performing non-executivehon-managerial duties. The director 
specifically questioned the petitioner's claim that it outsourced its services noting that the petitioner's 2004 
IRS Form 1120 did not show any expenses associated with paying for labor. The director certified her 
decision to the AAO and advised the petitioner on Form I-290C that it had 30 days in which to submit 
additional evidence in support of the petition. As discussed above, the petitioner has now submitted evidence 
that it did in fact submit additional documentation to be considered in the certification proceeding, and this 
evidence will be considered herein. 
In a letter dated March 8,2006, the petitioner emphasized that the U.S. company made a strategic decision to 
minimize the cost of staff and overhead by utilizing freelance talent to provide the company's services, while 
the beneficiary has been responsible for "establishing business relations, developing a network of local 
experts," and serving as the executive producer and publisher for the supervision and orchestration of all the 
hired specialists involved in developing the products and services." The petitioner cited an unpublished AAO 
decision, as well as Mars Jewelers v. INS, 702 F. Supp. 1720 (N.D. Ga. 1988) to stand for the proposition that 
the terms "manager" and "executive" were not intended to be limited to persons who supervise large numbers 
of employees or large enterprises, and to support its position that even a sole employee could be found to be 
employed in an executive capacity when outside contractors are utilized. 
The petitioner further stated that the beneficiary established a relationship with Ode USA, L.L.C., and since 
"the middle of 2004," the petitioner has been responsible for selecting, hiring and managing subscription, e- 
marketing and Direct Mail business partners on behalf of Ode USA. The petitioner states that the beneficiary 
is "the executive that sets the business objectives and defines the operating policies for each related 
department. He is defining the financial parameters of the partnerships and is reviewing the performance of 
the selected partners." The petitioner indicated that the U.S. entity receives a monthly retainer of $8,333 from 
Ode USA, while all charges for "outsourced and supervised services of the publishing specialists are charged 
directly to Ode USA and are not reflected in the P&L of the United States entity." The petitioner submitted 
letters from three companies who state that they were hired by the beneficiary to provide printing, fulfillment, 
consulting, and list rental services on behalf of Ode magazine. The outsourced companies indicate that the 
beneficiary "directs a team of designers and fulfillment specialists," "is responsible for defining the objectives 
of the fulfillment operation and for designing systems and procedures for that operation," and is responsible 
for "defining the magazine's direct mail strategy, supervising the list selection and implementing "list 
brokerage services." 
The petitioner also submitted a letter from 
 dated March 13, 2006, confirming that the 
petitioner was hired in 2004 to co-develop the magazine's business plan, and noting that responsibility for 
organizing and supervising subscription and fulfillment, e-marketing, and direct mail activities is outsourced 
and managed by the petitioning organization. 
In addition, the petitioner elaborated upon the beneficiary's role in the petitioner's "corporate video 
communication services" business, noting that the company secured its first major contract with B 
- in December 2004. The petitioner further explained: 
The development of a video program involves many disciplines. It starts with the ability to 
define the communication objectives of the clients and to define an effective communication 
strategy. This is typically the senior responsibility in which the beneficiary represents the 
United States entity as the Client/Communications Director. . . . This is the pre-production 
phase in which the scope of the assignment is defined, the budget is to be made and agreed 
upon and contracts are signed. Only the beneficiary has the authority to make these 
agreements. 
Once the contracts are signed a whole range of video production experts get involved. A 
director is hired to develop the creative treatment; graphic designers are hired for computer 
animations and graphic effects; video crews are hired - including directors of photography 
and sound technicians. . . . For the post Production[,] post production facilities are booked - 
both video and audio editors are included to create the required video and sound sequence. A 
producer is hired to organize the shoot and to manage the post production process. It is the 
task of the beneficiary - being the Executive Producer - to supervise the process, to manage 
the involved producers and to monitor the requirements of the client. 
The petitioner stated that the petitioner has increased the number of video assignments with Johnson & 
Johnson from one in 2004 to ten in 2005, representing an increase in revenue from $60,000 in 2004 to 
$179,000 in 2005. The petitioner attached copies of several 2005 contracts made between the petitioner and 
Johnson & Johnson for video production projects, which the petitioner states "support the description of the 
production process and the whole range of freelance specialists." The petitioner submitted letters from 
Johnson & Johnson Pharmaceuticals Research & Development, LLC, confirming its contracts with the 
petitioning company, and from u~which confirms that it provides the petitioner with 
various services, including video editing facilities, video, camera and sound crews, telestream services and 
graphic design services. 
Page 9 
The petitioner acknowledged the director's question as to whether the U.S. entity outsources services, as such 
expenses were not clearly indicated on the petitioner's corporate tax returns. The petitioner noted that the 
company includes its outsourced services as "cost of produced goods" on its tax returns, not as "cost of labor," 
as assumed by the director. The petitioner referenced its 2005 income tax return, on which it reported 
$2 1 1,000, reflecting the company's costs for outsourced video services. 
Finally, the petitioner addressed the director's finding that it appeared that the beneficiary will be engaged in 
the non-managerial, day-to-day operations involved in producing a product or providing a service. The 
petitioner discussed the beneficiary's employment history as a manager and business communication 
specialist and emphasized that the beneficiary "has no operational skills to make a video" such as video, 
audio, editing or design skills. The petitioner further explained the beneficiary's role as follows: 
He acts as the 'executive producer.' 
 He is responsible for the overall communication 
objective, for the financials of the project, and for the end result in terms of quality and 
effectiveness. In the film industry all skills are extremely departmentalized. Each department 
is a profession in itself. Having the ability to put a team together to secure investments for a 
project and supervise the specialists with the help of line producers is the task of the 
executive producer. . . . 
To provide the Corporate Publishing Services we would like to underline that here again the 
beneficiary is not trained and skilled to perform any of the day to day tasks of the operation. 
He is not a Subscription manager or specialist, he is not a direct mail copy writer, he is not a 
printer, he is not a database manager; he is not an e-marketing specialist. All these disciplines 
are required to develop a successful publishing entity or to provide the related services. 
It is the responsibility of the Beneficiary executive to select the right partners that have all the 
required expertise and talent, to contract these partners and to orchestrate the overall 
objective - being the executive publisher. 
Finally, as noted above, the petitioner has submitted additional evidence in response to the instant service 
motion to reopen. Upon review, much of the documentary evidence has been submitted previously and does 
not relate to the beneficiary's employment capacity as of the date this petition was filed. Counsel for the 
petitioner, in a brief dated February 16, 2007, states that the beneficiary is employed in an executive capacity 
and is responsible for the following duties: 
Financial Performance 
Implementation of and continuing development of the business development plan 
Supervise the execution of production and delivery of products and services 
Oversee and direct a network of viable work relationships with potential clients 
Oversee the 'contract out' component of the business 
Oversee all of the vendors to ensure quality control of the product and services 
Oversee and direct all national and international contracts 
Plan and execute advertising policies 
Plan and administer media programs 
Study demographic data and consumer profiles to identify target audiences 
Counsel emphasizes that USCIS has consistently approved L-IA nonimmigrant petitions filed by the 
petitioner on behalf of the beneficiary and contends that the decisions with respect to the instant immigrant 
petition are "capricious and an abuse of discretion." Counsel states that the determination that the beneficiary 
is not employed in an executive or managerial capacity is "so manifestly absurd as to constitute an abuse of 
discretion." 
Upon review of the record and the new evidence submitted by the petitioner, the director's February 9, 2006 
decision in this matter will be affirmed. 
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. § 204.5Cj)(5). The first iteration of the beneficiary's 
duties provided a generic overview of the beneficiary's duties. Statements such as directing and controlling 
the corporate business, overseeing and directing the completion of new product development, developing 
corporate plans, and overseeing and developing budget controls are insufficient to convey an understanding of 
what the beneficiary does on a daily basis. 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 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. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, the beneficiary's responsibilities suggest that the beneficiary is the individual marketing and selling 
the petitioner's services and providing the market research to do the same. Specifically, the petitioner 
describes the beneficiary as meeting with clients, distributors, and vendors, planning and executing 
advertising policies, formulating plans to create new accounts and maintain existing accounts, conferring with 
product managers, and studying demographic data and consumer profiles. However, 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 lOl(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology Int 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
In response to the director's request for further evidence, the foreign entity acknowledged that the beneficiary 
was the petitioner's sole employee. The foreign entity confirmed that the beneficiary spent 30 percent of his 
time on business acquisition. However acquiring accounts or maintaining existing ones is an operational task, 
necessary to establish and continue the petitioner's business. Again, an employee who primarily performs the 
tasks necessary to provide services is not considered to be employed in a managerial or executive capacity. 
Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church 
Scientology International, 19 I&N Dec. at 604.) The foreign entity stated that the beneficiary devotes an 
additional 25 percent of his time to providing the services as the petitioner's communication director, 
responsible for defining the client's needs, developing communication strategies, and supervising a creative 
and production team. The AAO observes that defining a client's needs and preparing or proposing a client's 
Page 11 
communication strategy are operational tasks intrinsic to providing the petitioner's communications 
consulting services and have therefore not been shown to be managerial or executive in nature. 
The new evidence considered in this proceeding emphasizes the petitioner's use of outside contractors to 
perform fulfillment, subscription, and direct marketing services for its publishing business, and its use of 
various specialized workers for its video production business. The petitioner emphasizes that the beneficiary 
is an "executive publisher" and an "executive producer"; however, the record does not substantiate that the 
beneficiary had a support staff to assist him with the day-to-day administrative, financial and other 
operational functions of the company, which have not been shown to be primarily managerial in nature. A 
review of the totality of the record indicates that the beneficiary himself is solely responsible for the creative 
work and research associated with developing client proposals, for marketing and selling the petitioner's 
services, and for handling the company's day-to-day finance activities and other office-related tasks. 
The foreign entity, in responding to the director's requested for evidence, attributed 20 percent of the 
beneficiary's time to performing the duties of an executive publisher for Ode magazine, which was launched 
in December 2003. However, the petitioner did not provide any evidence substantiating that the beneficiary 
was initially involved in developing this client's business plan, supervising its U.S. budget, or managing 
outsourced specialists in conjunction with the magazine. Furthermore, in its March 8, 2006 letter, the 
petitioner stated that it began providing corporate publishing services in "the middle of 2004," and a March 
13, 2006 letter from Ode magazine indicates that the petitioner was hired in 2004 to "co-develop" its business 
plan. The petitioner did not attempt to reconcile these statements with the petitioner's initial representation 
that the U.S. company provided services to Ode magazine in 2003. 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). 
If the beneficiary was providing services to Ode magazine at the time the petition was filed in March 2004, it 
appears that his services were provided as a professional business consultant, not as the manager of the 
company's marketing and subscription department, or as its "executive publisher." The beneficiary's 
responsibility for managing outsourced services for the petitioner's publishing division will thus not be 
considered herein, as the record does not establish that the beneficiary performed these duties at the time of 
filing. 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). 
In addition, even taking into consideration the additional evidence submitted in support of the certification 
proceeding, the record does not contain documentary evidence substantiating the petitioner's claim that it 
employed outside contractors comprising a creative or production team when the petition was filed. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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). The petitioner emphasizes its 
Page 12 
ongoing relationship with Johnson & Johnson, however, the evidence submitted confirms that the petitioner 
was first retained to provide video production services for this client in December 2004, nine months after the 
filing of the instant petition. The petitioner's 2004 corporate tax return identifies a figure of $39,464 for costs 
of goods sold, and the petitioner indicates that its outsourced labor costs are included within this figure. These 
costs are reflected as "purchases" on Schedule A of Form 1120, and the AAO cannot determine that this 
figure includes payments for outsourced services utilized by the petitioner on or before March 2004. Absent 
copies of invoices from contractors or other evidence detailing payments for outside labor as of the time of 
filing, the petitioner has not established that the beneficiary supervised a creative or production team. 
The petitioner in this matter does not provide a description of the beneficiary's duties sufficient to establish 
the beneficiary's eligibility for this visa classification. Conclusory and unsubstantiated assertions regarding 
the beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 
1108, affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, lnc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). The descriptions of the beneficiary's duties demonstrates only that the beneficiary, as the 
petitioner's sole employee, will be performing the petitioner's market research and promoting and selling the 
petitioner's services. The record does not substantiate that the beneficiary engaged in primarily managerial or 
executive tasks when the petition was filed. 
The AAO notes that the statutory definition of the term "executive capacity" focuses on a person's elevated 
position within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 
fj 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for the beneficiary to direct and the beneficiary must primarily 
focus on the broad goals and policies of the organization rather than the day-to-operations of the enterprise. 
An individual will not be deemed an executive under the statute simply because they have an executive title 
or because they "direct" the enterprise as the owner or sole managerial employee. The beneficiary must also 
exercise "wide latitude in discretionary decision making" and receive only "general supervision or direction 
from higher level executives, the board of directors, or stockholders of the organization." Id. 
In this matter the petitioner has not demonstrated that the beneficiary will primarily direct the management of 
or establish the goals and policies of the organization. As of March 2004, the petitioner had not attained the 
organizational complexity wherein hiring/firing personnel, discretionary decision-making, and setting 
company goals and policies would constitute significant components of the beneficiary's duties performed on 
a day-to-day basis. Instead the record shows that the beneficiary was focused on the necessity of establishing 
the petitioner's business by providing the petitioner's market research, proposing that other businesses use its 
services, as well as carrying out the administrative tasks of operating its office, and even directly providing 
business consulting services related to the start-up of Ode magazine. The petitioner has offered no evidence 
that when the petition was filed it employed or otherwise utilized the services of individuals who would carry 
out the petitioner's operational tasks, thereby relieving the beneficiary from performing primarily 
non-qualifying duties. 
Page 13 
The petitioner has not provided evidence that the beneficiary performs or will perform primarily in a 
managerial capacity. As indicated above, the petitioner has not provided documentary evidence to 
substantiate that it utilized outside employees or services to carry out the petitioner's operational tasks. As the 
director determined, the record does not contain evidence that the beneficiary manages a subordinate staff of 
employees who would relieve him from performing non-qualifying duties. Again, 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. at 165. 
The record does not contain sufficient evidence to establish that the beneficiary will direct or manage the 
petitioner's essential function. The term "function manager" applies generally when a beneficiary does not 
supervise or control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U. S .C. 
5 1 lOl(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. However, if a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed, i.e. identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. 8 C.F.R. 5 204.5(j)(5). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. Again, an employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. 
Boyang, Ltd. v. I.N.S., 67 F.3d at 305. In this matter, the petitioner has not provided evidence that the 
beneficiary manages an essential function. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or services 
that the beneficiary manages. Even if the beneficiary does not directly supervise employees, it is the 
petitioner's obligation to establish that someone other than the beneficiary performs the day-to-day non- 
managerial tasks of the function managed. As discussed above, the petitioner has not met this burden. 
Counsel refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. While 8 C.F.R. tj 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
Counsel correctly observes that a company's size alone, without tahng 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 5 101 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C). The AAO acknowledges counsel's contentions 
that the requested visa classification was not intended to be limited to individuals who supervise a large 
number of employees or large enterprises, to exclude employees who supervise independent contractors rather 
than direct employees. 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. Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). 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. 
At the time of filing, the petitioner employed the beneficiary as managing director. The record does not 
support a conclusion that the petitioner was utilizing independent contractors to provide services to clients at 
the time of filing. Nor has the petitioner submitted evidence that it employed any subordinate staff members 
who would perform the actual day-to-day, non-managerial operations of the company, which would 
reasonably include administrative, financial, marketing, creative and operational tasks associated with 
developing the petitioner's business. Based on the petitioner's representations, it does not appear that the 
reasonable needs of the petitioning company might plausibly be met by the services of a single employee who 
performs primarily managerial or executive duties. Regardless, the reasonable needs of the petitioner serve 
only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or executive 
duties. The petitioner must still establish that the beneficiary is to be employed in the United States in a 
primarily managerial or executive capacity, pursuant to sections lOl(a)(44)(A) and (B) or the Act. As 
discussed above, the petitioner has not established this essential element of eligibility. 
The AAO acknowledges that a sole employee, in some circumstances, may provide primarily managerial or 
executive services for a petitioner. However upon review of the record in this matter, the petitioner has not 
provided substantiating evidence that the petitioner employed or would employ individuals to carry out the 
marketing and sale of the petitioner's services to its prospective clients. Further, the record does not contain 
substantiating evidence that the petitioner utilized the services of outside contractors to carry out the 
petitioner's basic operational tasks. The petitioner has not established that the beneficiary's duties and those 
of his claimed outside service providers elevate the beneficiary's position to a primarily managerial or 
executive position. Again, the petitioner's increase in business activities and use of independent contractors 
subsequent to the filing of the petition are not relevant to this proceeding. 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. at 49. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity. Accordingly, the director's decision will be affirmed. 
The second issue in this matter is whether the petitioner has established a qualifying relationship with the 
beneficiary's foreign employer. To establish a "qualifying relationship" under the Act and the regulations, the 
petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same 
employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally 5 203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C). 
The regulation at 8 C.F.R. 5 204.5Cj)(2) states in pertinent part: 
Afiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In a December 28, 2003 letter submitted in support of the petition, the petitioner referenced the beneficiary's 
foreign employer as the petitioner's parent company. The petitioner noted that the beneficiary was one of the 
founding partners of the foreign entity, 
 established in Naarden, The 
Netherlands in 1984. 
 The petitioner mther noted that in 
 e bene iciary partnered with = 
in 1994, the beneficiary and I establishedl.li.~'' and in 2001 
decided to found a company in the United States. The petitioner provided its stock certificate number 1 
issued to - for 1,000 shares,-dated ~aich 1, 2001. The petitioner's 2002 IRS 
The director did not address the issue of qualifying relationship in her August 25, 2004 decision. The AAO 
observed when remanding the matter to the director, that a stock certificate alone was insufficient to establish 
a qualifying relationship. The AAO instructed the director to request evidence that would demonstrate that 
the foreign entity had actually paid for its interest in the petitioner. On July 28, 2005, the director requested 
this information, as well as a copy of the petitioner's stock ledger. 
response to the director's request for evidence, the chief financial officer om 
. stated that the petitioner's stock ledger was with its former attorneys and that it was 
~roving: difficult to retrieve it. The ~etitioner re-submitted its stock certificate number 1. The record also 
u 
contains the petitioner's 2001, 2003: and 2004 IRS Forms 1120, all of which identify - 
as the petitioner's 100 percent owner. The petitioner did not supply evidence or an explanation 
demonstrating that the foreign entity had in fact paid for its ownership of the petitioner. 
Page 16 
The director concluded on February 9, 2006, without discussion, that the evidence of record does not clearly 
establish that there is a qualifying relationship between the United States and the foreign entity. 
In response to the notice of certification, the petitioner submitted a letter from the foreign entity's accountant, 
dated~arch 6, 2006, stating that the U.S. company is wholly owned by 
 The 
petitioner's response included the petitioner's stock ledger, an April 2001 bank statement for the U.S. 
company showing a $100,000 wire transfer credit that purportedly originated with the Dutch company, and 
other documentation showing that 
 . is the sole owner of the U.S. company. The 
petitioner also included a group organizational chart showing 
 as the owner of the petitioning 
company, a Dutch subsidiary, 
 ., and a Belgian subsidiary, 
- 
 - 
In support of the instant service motion to re-open, counsel re-asserts that :-~ 
owns and controls 100 percent of the petitioning company. The petitioner's supporting evidence includes a 
copy of the petitioner's stock certificate number one issued to the claimed parent company, a copy of the 
The record also contains an excerpt from the Trade Register of the Chamber of Commerce and Industry for 
Gooiland and Eemland, The Netherlands, which indicates that was formed as a 
partnership in 1994. The document, which is dated December 22, 1999, shows that the partners of the 
Upon review, the director's conclusion on this issue will be affirmed. The petitioner has not submitted clear 
petitioning company. However, it is not clear that -1 continues to exist, particularly 
as the company is not identified on the petitioner's current group organizational chart. Again, 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. at 591-92. 
The AAO clarifies that the ownership of the petitioning entity is not in question. However, in order to 
establish eligibility for classification as a multinational manager or executive for immigrant visa purposes, the 
petitioner must establish that it maintains a qualifying relationship with the beneficiary's foreign employer; 
the foreign corporation or other legal entity that employed the beneficiary must continue to exist and have a 
qualifying relationship with the petitioner at the time the immigrant petition is filed. 8 C.F.R. 8 
204.5(j)(3)(i)(C). A multinational executive or manager is one who "seeks to enter the United States in order 
3 The AAO observes that the beneficiary appears to be the sole shareholder of 1- 
as noted in a translated document issued by the Gooiland and Eemland Chamber of Commerce. 
to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive." Section 203(b)(l)(C) of the Act, 8 U.S.C. 8 1153(b)(l)(C). The petitioner must 
establish eligibility at the time of filing the immigrant visa petition. Matter of Michelin Tire Cor-. , 17 I&N 
Dec. 248 (Reg. Comm. 1978). The fact that the petitioner continues to be part of a multinational group is 
irrelevant in this proceeding, absent evidence that the foreign company that employed the beneficiary 
continues to exist as part of this group. 
None of the evide 
 ecision assists in clarifying whether the Dutch 
entity referred to a 
 and identified as the beneficiary's last employer 
xist. The AAO will not simply assume that this is the same company as Norvell 
. as it appears to have been established as a separate entity in 1994. Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
As the director determined, the record is not sufficiently clear to establish that the petitioner and the 
beneficiary's foreign employer, , continue to enjoy a qualifying relationship as 
defined by the regulations. For this additional reason, the petition will not be approved. 
The final issue addressed by the director is whether the petitioner has sufficient physical premises to house the 
U.S. company. The director observed that the petitioner operates out of the beneficiary's home. 
In response to the director's decision, and in support of the certification proceeding, the petitioner explained 
that the office space available in the petitioner's home is approximately 1,200 square feet and includes office 
and meeting space which is more than sufficient for a small business. The petitioner also emphasized in its 
letter dated March 8, 2006 that the beneficiary often travels to meet clients on-site in New York and New 
Jersey, while clients do not normally visit the petitioner's physical office. The petitioner provided a copy of 
the lease agreement between the beneficiary and the petitioner, color photographs of the premises, and a floor 
plan showing the layout of the leased space. 
Upon review, the petitioner's assertions are persuasive. The evidence of record , considered with the nature of 
the petitioner's business, is sufficient to establish that the petitioner has adequate premises for its operations. 
The director's decision with respect to this issue only will therefore be withdrawn. 
Finally, beyond the decision of the director, the petitioner has not established that the beneficiary's 
employment for the foreign entity was in a primarily managerial or executive capacity, as the record does not 
contain a comprehensive description of the beneficiary's duties for the foreign entity. As instructed by the 
AAO, the director requested specific information on this issue in its request for evidence dated July 28, 2005. 
In response, the chief financial officer of the petitioner's parent company referenced the past approvals of the 
petitioner's L-1A nonimmigrant petitions submitted on behalf of this beneficiary. However, past approvals do 
not establish the beneficiary's eligibility for this visa classification. See discussion below. 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(b)(14). For this additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The last issue in this matter regards references to past approvals of the beneficiary as an L-1A nonimmigrant 
intracompany transferee. The AAO has consistently determined that prior nonimmigrant approvals do not 
preclude CIS from denying an extension or a separate immigrant petition. See e.g. Texas AM Univ, v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The AA0 acknowledges that both the 
immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and executive 
capacity and on similar definitions of qualifying relationship/organization. See 55 101(a)(44)(A) and (B) of 
the Act, 8 U.S.C. tj 1101(a)(44) and 8 C.F.R. 5 204.56)(2) and 8 C.F.R. 5 214.2(1)(l)(ii). Although the 
statutory definitions for managerial and executive capacity are the same and the definitions of qualifying 
relationship/organization are similar, the question of overall eligibility requires a comprehensive review of all 
of the provisions, not just these definitions. 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. Cf. $5 204 and 214 of the Act, 
8 U.S.C. $5 1154 and 1184; see also 5 316 of the Act, 8 U.S.C. 5 1427. 
In general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant 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 
are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. 
5 214.2(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. 5 103.8(d). The 
approval of a nonimrnigrant petition does not guarantee that USCIS 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 approval of 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 
Page 19 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgome y, 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 nonirnmigrant 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. 51 (2001). The petitioner has not provided evidence or argument for the record 
that is sufficient to overcome the director's decision. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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, that burden has 
not been met. 
ORDER: The director's February 9,2006 decision is affirmed.