dismissed EB-1C Case: Real Estate And Agriculture

identi-g data dele- W 
prey e~lt cIea4:~ unwarranted 
wsion of aersod ~rJvfl~~ 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
SRC 04 17 1 50422 
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 Offlce 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. 
&&A@- 
obert P. W~emann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Florida that is 
engaged in acquiring real estate and agriculture investments, and providing support services in the area of 
construction. The petitioner seeks to employ the beneficiary as its general manager. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner refutes the director's finding, contending that Citizenship and 
Immigration Services (CIS) disregarded the evidence provided by the petitioner, including the beneficiary's 
job description, the petitioner's organizational chart, and invoices documenting the petitioner's use of contract 
labor. Counsel submits a brief in support of the appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. - An alien is 
described in this subparagraph if the alien, in the 3 years preceding the time 
of the alien's application for classification and admission into the United 
States under this subparagraph, has been employed for at least 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Page 3 
Section 101(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 managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, hctions at a senior level within the 
organizational hierarchy or with respect to the hction managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or hnction 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. 3 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-malung; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the instant immigrant petition on June 3, 2004, noting that the beneficiary would be 
employed as the general manager of the corporation. In an appended letter, dated June 1, 2004, the vice- 
president of the foreign entity addressed its desire to employ the beneficiary in the United States as a result of 
his work experience in the foreign entity, and provided the following description for the beneficiary's 
proposed position: 
As [gleneral [mlanager of our U.S. subsidiary, [the beneficiary's] duties include directing the 
management of the corporation to ensure its successful operation; establishing goals and 
policies; implementing strategies to improve productivity and reduce operational costs; and 
Page 4 
investigating investment opportunities to expand the company's holdings. 
 In effect, [the 
beneficiary] has been managing the overall operations and essential functions with our U.S. 
subsidiary and, in doing so, has absolute authority to exercise a wide range of discretion over 
company policy and decision making, including investments, expansion, planning, staffing 
and budget. 
The foreign company's vice-president also addressed the petitioner's use of contract workers, including 
foreman, fruit pickers, herbicide and fertilizer sprayers, irrigation and field workers, and equipment and truck 
operators, to perform the tasks associated with the avocado and lemon farm owned and operated by the 
petitioner. The petitioner stated "[the beneficiary] has absolute authority and discretion to negotiate contracts 
and retain the necessary labor force to achieve the company's initial business goals . . . [and] directs and 
supervises the activities of the field foreman, who has authority over the day-to-day on-site operations at the 
farm." As evidence of its use of outside labor, the petitioner submitted invoices, dated between January and 
December 2003, representing work contracted for by the petitioner from "Brooks Tropical, Inc.," a grove 
management and maintenance company. The petitioner's 2003 corporate tax return reflected compensation in 
the amount of approximately $30,000 paid by the petitioner for outside labor. Additional evidence offered by 
the petitioner, such as information contained on the Form 1-140 and its quarterly wage reports, indicated that 
at the time of filing the beneficiary was the sole employee of the petitioning entity. 
The director subsequently issued a request for evidence, dated March 28, 2005', noting that it was unclear 
whether the beneficiary would be employed in a primarily managerial or executive capacity, particularly 
because the beneficiary was the petitioner's sole employee. The director asked that the petitioner provide a 
"definitive statement" of the beneficiary's proposed job duties, in which the petitioner would also address the 
following issues: (1) the beneficiary's position title; (2) the percentage of time the beneficiary would spend 
performing each of the named job duties; (3) the employees that would report to the beneficiary, as well as 
their job titles, job duties, and educational levels; (4) the qualifications required for the beneficiary's position; 
(5) the beneficiary's level of authority; and (6) an explanation of who performs the services offered by the 
petitioner. The director noted that if the beneficiary does not supervise other employees, the petitioner should 
specify the essential function to be managed by the beneficiary. The director also requested that the petitioner 
identify the beneficiary's position within the company's organizational hierarchy. As additional evidence of 
the petitioner's staffing levels, the director asked that the petitioner submit copies of its Internal Revenue 
Service (IRS) Form W-2, Wage and Tax Statement, IRS Form 941, Employer's Quarterly Tax Return, and 
pay stubs. 
Counsel for the petitioner responded in a letter dated June 7, 2005, in which he emphasized the petitioner's 
use of contract labor instead of employing its own staff of subordinate workers. As evidence of the 
petitioner's use of independent contractors, counsel addressed the invoices initially provided at the time of 
filing, and submitted additional invoices dated between January and December 2004. 
With regard to the beneficiary's employment in the United States, counsel referenced a letter from the foreign 
entity, dated June 3,2005, in which the company's vice-president stated: 
' The director issued a second request for evidence dated October 19,2005, asking that the petitioner resubmit 
the documentary evidence previously requested, as it had not been attached to the instant record. The record 
reveals, however, that both the petitioner's original and second response to the director's request for evidence 
is part of the record. 
Page 5 
As General Manager, [the beneficiary's] duties include the following: 
Directing the management and administration of our subsidiary to ensure its 
successful operation. (25%) 
Establishing goals and policies relating to investments, structure organization, 
creation of new projects and development plans. (10% - 15%) 
Implementing strategies to improve productivity and reduce operational costs. (10%) 
Investigating investment opportunities and investing the necessary capital, as needed, 
to expand business holdings and operations. (1 5% - 20%) 
Defining and implementing operating and financial objectives. (10%) 
Developing short-term and long-term plans and proposals with supporting budget 
forecasts and financial estimates for each operational area of the business. (10%) 
Establishing and negotiating contracts. (5% - 10%) 
Hiringlfiring of employees, independent contractors, and other personnel. (5% - 10%) 
Reporting to our headquarters in Venezuela. (5% - 10%) 
In summary, [the beneficiary] holds the senior most position in our U.S. subsidiary and has 
been delegated with the absolute authority to exercise a wide range of discretion over 
company policy and decision-making, including investments, expansion, planning, staffing 
and budget. 
The foreign company's vice-president explained the beneficiary's "key and vital role" in the petitioner's 
growth, noting that under the beneficiary's "leadership and direction," the company acquired its 100-acre 
avocado and lemon farm and 11,200 square foot warehouse. He further noted the beneficiary's participation 
in the negotiation of a $20 million contract to provide construction and consulting services for a project in the 
Dominic Republic, stating that despite the cancellation of the project, the beneficiary performed "extensive 
research and reporting" that allowed the foreign company "to make an informed and educated decision to go 
forward with such a significant investment of capital." 
The petitioner submitted its organizational chart reflecting the beneficiary's subordinate staff as consisting of 
independent contractors in the positions of corporate attorney, accountant, foreman, truck operators, fruit 
pickers, herbicide and fertilizer sprayers, and irrigation field workers. 
In a decision dated December 6, 2005, the director concluded that the petitioner had not demonstrated that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
Following an outline of the beneficiary's job duties, the director stated that the "vague and general" 
description failed to provide "an accurate portrayal" of the day-to-day job duties to be performed by the 
beneficiary. With regard to the petitioner's workforce, the director noted that both the petitioner's invoices 
and tax returns reflect a "minimal" amount of compensation paid by the petitioner to outside laborers. The 
director noted that the petitioner had not provided IRS Form 1099 reflecting the wages paid to its purported 
independent contractors, and further stated that it was unclear how many workers were utilized by the 
petitioner to perform the tasks associated with the farm. The director stated that as a result, the petitioner had 
not demonstrated that the beneficiary would be relieved from performing the tasks of the petitioner's business. 
Consequently, the director denied the petition. 
On appeal, counsel for the petitioner claims that CIS did not consider the documentary evidence submitted, 
which counsel states demonstrates the beneficiary's proposed employment as a function manager. Counsel 
challenges the director's finding as to the vague and general job description, contending that the record 
provides an accurate description of the beneficiary's daily job duties. Counsel restates the job duties that were 
outlined in the foreign company's June 3, 2005 letter, and again notes "the beneficiary's leadership and 
direction'' in acquiring both the avocado and lemon farm and warehouse. Counsel claims that the beneficiary 
is managing the petitioner's essential functions, stating: 
[Tlhe beneficiary is the only individual within the organization who can manage, and is 
authorized to manage, the following functions: establishing and negotiating contracts and 
other related matters; hirindfiring employees and independent contractors (e.g., foremen, 
laborers, accountant(s), attomey(s), etc.); establishing goals and policies with respect to all 
significant issues affecting business operations; and investigating business and investment 
opportunities and expending capital to expand business operations and holdings. 
Counsel contends "only a true executive could establish a new business in [the United States], investigate, 
arrange and make significant investments totaling $2 million with a short period of time, and have the 
company succeed." Counsel references two unpublished AAO decisions, as well as several decisions from 
the Board of Immigration Appeals, in support of the claim that the beneficiary would be employed as a 
function manager. The AAO notes that while 8 C.F.R. 9 103.3(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 further contends that the director erroneously focused on the size of the petitioning organization and 
the fact that the beneficiary was the sole employee. Counsel stresses that the classification as a multinational 
manager or executive is not restricted to large corporations. Counsel also disputes the director's finding of 
minimal documentation related to the petitioner's workforce, stating that each invoice submitted for the record 
"reflect[s] labor services and materials provided to the petitioner." Counsel claims common sense would 
suggest that "numerous workers" are required to maintain the petitioner's 100-acre farm, whose employment 
is reflected in the invoices from Brooks Tropical. Counsel states that in light of the "sizeable" labor force, the 
beneficiary would not be performing the day-to-day functions of the company, and stresses that the 
beneficiary would hold "the most senior position in the [petitioning entity]." 
Counsel also emphasizes that CIS has previously approved three L-1A nonimmigrant visa petitions filed on 
behalf of the beneficiary as the petitioner's president. Counsel states that each petition was based on the same 
facts and parties as in the instant matter. 
Upon review, the petitioner has not established that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
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. 5 204.56)(5). The petitioner is obligated to submit 
documentary evidence "clearly describ[ing] the duties to be performed by the [beneficiaryl." Id. As properly 
noted by the director, the limited job description offered by the petitioner does not identify the specific day- 
to-day managerial or executive tasks to be performed by the beneficiary as the company's general manager. 
The record does not thoroughly document the tasks to be performed by the beneficiary, specifically with 
regard to his "management and administration of the U.S. company," his supervision of the purported 
independent contractors and the "new projects" to be created by him. See Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990) (requiring that the petitioner submit 
"concrete evidence" of the beneficiary's employment in a primarily managerial or executive capacity, such as 
how, when, where and with whom the beneficiary's job duties occurred). The AAO notes that despite having 
two opportunities to submit a more thorough outline of the beneficiary's job duties, the petitioner provided 
similar vague job descriptions in both its June 7, 2005 response and on appeal. Reciting the beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question 
in this case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal 
the true nature of the employment. Id. Additionally, the petitioner has not addressed the beneficiary's 
specific role with regard to the management of the avocado farm or warehouse, or in connection with the 
petitioner's additional function of providing support services to businesses in the construction industry. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel emphasizes the petitioner's use of contract workers to perform the day-to-day tasks of the United 
States business, and notes the use of attorneys and accountants to render professional services. While the 
record contains documentary evidence that the petitioner compensated day laborers for work performed at its 
avocado and lemon farm, the petitioner has not accounted for the performance of its warehousing functions, 
or for its use of professionals. The record is devoid of pay slips or invoices documenting wages paid to 
warehouse workers or compensation paid to an accountant or attorney. In fact, neither counsel nor the 
petitioner specifically addressed the purpose of the warehouse. While it is possibly being used to store 
agricultural products harvested from the farm, the beneficiary's role with regard to this particular project is 
unclear. Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Id. 
Counsel stresses on appeal that the beneficiary would be employed as a function manager. 
 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 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 8 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. 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. 204.5Q)(5). 
Counsel states that as the sole employee of the organization, the beneficiary exercises authority over the 
management of the petitioner's functions, including "investments, expansion, planning, staffing and budget." 
A critical review of the record, however, undermines counsel's claim that the beneficiary possesses 
managerial or executive authority over the petitioner's functions. Specifically, both counsel and the petitioner 
reference the beneficiary's purported "leadership and direction" in the petitioner's acquisition of an avocado 
farm and warehouse as evidence of his managerial position. The warranty deeds associated with the purchase 
of these properties, however, are dated more than eight months before the beneficiary entered the United 
States under an L-1A nonimmigrant visa petition for employment in the petitioning entity. The AAO also 
Page 8 
notes that neither settlement statement is signed by the beneficiary. In fact, the settlement statement related to 
the purchase of the warehouse identifies the petitioner's corporate secretary as the borrower. The beneficiary 
is not identified as a representative of the petitioning entity on either document. As a result, it would appear 
that in fact, the beneficiary was not involved in managing the petitioner's investment and expansion functions, 
as claimed by counsel and the petitioner. Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Moreover, the record suggests that even while employed in the United States, the beneficiary would not 
possess the authority to manage or direct the United States organization. Specifically, in the June 1, 2004 
letter, the foreign entity's vice-president stated that "[the foreign entity] [has] made an informed decision to 
contract outside labor for our subsidiary's business activities." He further stated in the June 3, 2005 letter that 
"[ilt was only through [the beneficiary's] extensive research and reporting that we [the foreign entity] were 
able to make an informed and educated decision to go forward with [investing $2 million in the United States 
subsidiary]." These statements suggest that the decision-making authority is not held by the beneficiary, but 
rather by the foreign corporation. It appears that despite the beneficiary's employment in the United States, 
the foreign entity ultimately determines the petitioner's goals and policies, and, in effect, manages the 
organization. The record does not establish that the beneficiary would manage or exercise direction over the 
petitioning organization or its functions. See 101(a)(44)(A). If CIS fails to believe that a fact stated in the 
petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 5 1154(b); see also Anetekhai v. 
I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 
(D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Counsel correctly observes on appeal that a company's size alone, without talung 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. 
 1101(a)(44)(C). However, it is appropriate for CIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
Here, the record contains numerous inconsistencies that would suggest that the petitioner's reasonable needs 
would not be met through the employment of the beneficiary and the laborers contracted to work on the 
petitioner's farm. As already discussed above, the petitioner has not demonstrated its use of professionals for 
the performance of such administrative functions as payroll, bookkeeping, bill paying and the preparation of 
its quarterly tax returns, as well as the performance of any functions related to the petitioner's warehouse, 
such as receiving and stocking goods, inventory, or distributions, and the associated paperwork. Again the 
petitioner did not address or document the use of outside contractors in its warehouse or explain who 
performs the duties associated with providing support services to the construction industry. As such, the 
petitioner has not demonstrated that its reasonable needs would be met by the services of the beneficiary as its 
general manager and its claimed contract workers. 
The vague job description offered by the petitioner, as well as the inconsistencies addressed above, prevents a 
finding that the beneficiary would be employed by the United States entity in a primarily managerial or 
Page 9 
executive capacity. 
 Accordingly, the petitioner has not established the beneficiary's eligibility for the 
requested immigrant visa classification. As a result, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not demonstrated that the beneficiary had been 
employed by the foreign entity in a primarily managerial or executive capacity. The petitioner noted that the 
beneficiary was employed as the foreign entity's operations manager. The limited job description offered by 
the petitioner in both its June 1, 2004 and June 3, 2005 letters, however, fails to describe the specific 
managerial or executive tasks performed by the beneficiary in the position of operations manager. The 
petitioner stated that the beneficiary "was responsible for overseeing and directing the purchase, allocation, 
maintenance and repair of our company's equipment and machinery," aided in restructuring the company's 
operations department, and supervised fifty-nine employees, including three managers. The petitioner did not 
explain what job duties the beneficiary performed on a daily basis that would establish his role as a manager 
or executive. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
has failed to answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. at 1108. 
Additionally, the petitioner failed to demonstrate that the beneficiary held a managerial or executive position 
in the foreign entity's organizational hierarchy. The petitioner's blanket statement that the beneficiary directed 
fifty-nine workers, of which three were managers, is not sufficient to demonstrate his employment in a 
primarily managerial or executive capacity. The AAO notes that the organizational chart depicted in the 
foreign entity's brochure does not identify the beneficiary's former position of operations manager. In 
addition to the lack of evidence related to the beneficiary's job duties, the record does not establish that the 
petitioner managed or directed a support staff that would perform the functions of the operations department. 
The MO notes that an employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Int 'l., 19 I&N Dec. 593,604 (Comm. 1988). For 
this additional reason, the petition will be denied. 
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), afyd. 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 MO reviews 
appeals on a de novo basis). 
Counsel stresses on appeal that CIS has previously approved three nonimmigrant L-1A visa petitions filed for 
the benefit of the beneficiary. It should be noted that, in general, given the permanent nature of the benefit 
sought, immigrant petitions are given far greater scrutiny by CIS than nonimrnigrant petitions. The AAO 
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of 
managerial and executive capacity. See $5 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 3 1101(a)(44). 
Although the statutory definitions for managerial and executive capacity are the same, the question of overall 
eligibility requires a comprehensive review of all of the provisions, not just the definitions of managerial and 
executive capacity. There are significant differences between the nonimmigrant visa classification, which 
allows an alien to enter the United States temporarily for no more than seven years, and an immigrant visa 
Page 10 
petition, which permits an alien to apply for permanent residence in the United States and, if granted, 
ultimately apply for naturalization as a United States citizen. CJ: $8 204 and 214 of the Act, 8 U.S.C. $5 1154 
and 1184; see also 5 3 16 of the Act, 8 U.S.C. $ 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. 9 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing L-1 petitions than Form 1-140 immigrant 
petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30 (recognizing that CIS approves some petitions in error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proofi each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS fiom denying an extension petition. See e.g. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 
556,2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Sava, 
724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomeiy, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of 
required evidence in the present record, the AAO finds that the director was justified in departing from the 
previous nonimmigrant approvals by denying the present immigrant petition. 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.