dismissed EB-1C Case: Restaurant

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
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U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
LIN 07 021 52238 
IN RE: 
Date: DEC 1 9 2008 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
~~efjfj *, 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that owns and operates a restaurant. The petitioner seeks to employ the 
beneficiary as its president. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on two independent grounds of ineligibility. The director concluded that: 1) the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 
2) the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief and additional documents in 
support of her arguments. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The two primary issues in this proceeding call for an analysis of the beneficiary's job duties. The AAO will 
review the petitioner's submissions to determine whether the beneficiary was employed abroad and whether 
he would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
Page 3 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 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; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated October 13, 2006, stating that the 
beneficiary's responsibilities with the U.S. entity include the following: hiring, firing, training managerial 
staff, determining company growth and marketing strategies, and making business decisions. The petitioner 
stated that the beneficiary assumed a similar role with the foreign entity. The petitioner also provided its 
organizational chart, depicting the beneficiary as the head of the company with a vice president as his direct 
subordinate. The kitchen manager and restaurant manager are identified as the vice president's direct 
subordinates. At the bottom of the organizational hierarchy are the kitchen staff, who are supervised by the 
kitchen manager, and a cashier and waiters, who are supervised by the restaurant manager. Lastly, the 
petitioner provided the foreign entity's payroll statements from January through June 2006, naming all of the 
foreign entity's employees and their respective salaries and position titles. 
On July 31, 2007, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, inter alia, documentation to assist U.S. Citizenship and Immigration Services (USCIS) in 
determining the beneficiary's employment capacity in his foreign and proposed positions. Specifically, the 
petitioner was asked to provide detailed job descriptions of the beneficiary's foreign and proposed 
employment, including specific job duties and the amount of time allotted to each listed job duty. The 
petitioner was also asked to provide each entity's organizational chart depicting the beneficiary's positions 
within each entity, as well as the employees the beneficiary managed abroad and those he would manage in 
his prospective position in the United States. Lastly, the director restated two of the responsibilities included 
in the petitioner's initial description of the beneficiary's position and asked the petitioner to clarify by 
specifying the actual job duties associated with the broadly defined responsibilities. 
In response, the petitioner provided a letter dated August 30, 2007, which included the following job 
descriptions for the beneficiary's foreign and U.S. positions accompanied by a percentage breakdown of the 
beneficiary's time allocation: 
Foreign entity job description: 
As [clhief [elxecutive and [gleneral [mlanager at Keshmir Restaurant Malaysia, [the 
beneficiary] directed the operations of the company by formulating policies, procedures, and 
goals for implementation by subordinate first-line managers; for example, he decided what 
the employment structure would be, who would perform which duties and how; he directed 
the organization and components of the restaurant, kitchen, dining room, etc.; he set sales 
goals for the for the [sic] managers and oversaw and reviewed upper level implementation of 
such goals, deciding (after input and meetings with managerial staff), which productslmenu 
items to push and when, depending on his expertise and judgment [25% of his time]. He 
directed the hiring of all new staff, including high levellmanagerial staff [5%]. [The 
beneficiary] was responsible for making executive decisions regarding menu selection and 
pricing; products and services to be offered (such as cateringlprivate partieshanquets, etc.) 
[20%]; and, most importantly, business expansion andlor diversification [20%]. [The 
beneficiary] was responsible for the continued success and growth of the company and was 
charged with making decisions regarding whether and how to expand the business (adding 
seating space, increasing menu items offered, expanding restaurant hours, hiring additional 
staff, providing retail specialty food products and cookware, etc.) [15%] He also monitored 
financial reports prepared by accountants . . . [15%]. . . . 
[The beneficiary] managed and supervised the [klitchen [m]anager/[h]ead [clook and the 
[flloor [m]anager/[h]ead [wlaiter. The [klitchen [mlanager in turn supervised the assistant 
cooks and food preparation assistants, and other kitchen help, creating their work schedules 
and monitoring their performance. Any problems or issues not resolved by the managerial 
staff would be reported to [the beneficiary]. The [flloor [mlanager supervised the waiters, 
hostess, and other floor workers, creating their work schedules and monitoring their 
performance, reporting any problems or issues to [the beneficiary]. [The beneficiary] had 
100% authority over the operations of the company and made all executive decisions . . . . 
The petitioner also provided the foreign entity's organizational chart illustrating a multi-tiered structure 
consisting of a general manager at the top of the hierarchy; a kitchen managerlcook and floor managerhead 
waiter as the general manager's direct subordinates; assistant cooks and food preparation assistants as the 
kitchen manager's subordinates; and waiters and a hostess as the floor manager's direct subordinates. 
U.S. entity job description: 
At the U.S. company, [the beneficiary] is employed as [plresident. In that capacity, he has 
been a key player in ensuring our company's continued success. As [plresident, he directs, 
manage[s], and trains the first-line managers/supervisors (the [vlice-[plresident, the [gleneral 
[mlanager, and the [klitchen [mlanager [25% of his time], all of whom manage and supervise 
other employees). He is responsible for making executive decisions, and developing and 
implementing company policies and goals, such as deciding what the employment structure 
of the company should be, who shall perform which duties and how; directing the 
organization and components of the restaurant, kitchen, dining room, etc.; and setting sales 
goals for the waitstaff [sic], deciding which products/menu items to push and when, 
depending on his expertise and judgment [30%]. 
He has the authority to hire, fire and/or promote staff members based on his professional and 
executive judgment [lo%]. [The beneficiary] makes executive decisions regarding corporate 
expansion and diversification, after reviewing market and financial research performed by 
staff [20%]. He decides whether to re-invest profits to further develop and expand the 
restaurant's operations, whether to open additional locations, whether to expand [the] current 
location, and whether to provide additional services, such as catering, based on research 
performed by subordinates [15%]. . . . He also exercises discretion over the day-to-day 
operations of the business; although he does not perform the actual services provided by [the] 
business. [The] staff members are charged with the cooking and serving of food, while [the 
beneficiary] is charged with making major financial, operational, marketing, and expansion 
decisions, based on data gathered by staff. 
The petitioner also provided its restaurant's weekly five-day schedule showing how the restaurant was staffed 
from Monday through Friday during a three-week period in August 2007. It is noted that the Form 1-140 in 
the present matter was filed on October 25, 2006, or nearly 10 months prior to the dates on the schedule 
provided by the petitioner. The petitioner did not provide a schedule reflecting its staffing and scheduling 
practices at the time the petition was filed. Furthermore, the schedule that the petitioner did provide does not 
include Saturday, even though the brochure advertising the restaurant's services and hours of operation 
clearly shows that the restaurant is open for business on Saturdays from 4 p.m. until 10 p.m. 
In a decision dated December 26, 2007, the director denied the petition. With regard to the beneficiary's 
foreign employment, the director noted a discrepancy between the number of employees claimed and the 
number of positions listed in the payroll documents provided in support of the petition. The director also 
noted that the petitioner failed to explain who performed the foreign entity's purchasing, marketing, and 
accounting duties, indicating that without further information the beneficiary was the person most likely to 
have performed the duties associated with those functions. 
With regard to the beneficiary's proposed position with the U.S. entity, the director found that while the 
petitioner clearly defined the degree of the beneficiary's discretionary authority, it failed to specify the actual 
job duties the beneficiary would perform. Rather, the director found the proposed job description to be vague, 
failing to establish which specific duties could be deemed managerial and which could be deemed executive. 
Here as well the director found that the petitioner did not identify who would be responsible for purchasing, 
marketing, and handling the restaurant's daily financial transactions. The director also noted the two different 
fliers advertising the petitioner's restaurant, pointing out that the fliers were inconsistent with regard to the 
restaurant's days and hours of operation. Lastly, the director made note that ten employees were listed in the 
restaurant's August 2007 schedule, while only four W-2 statements were issued in 2005 (aside from the one 
issued to the beneficiary during that year), thus indicating that the number of employees the petitioner had at 
the time of filing is unclear as the petitioner did not explain or address any changes in its staffing. In 
discussing the 2005 W-2 statements, the director noted that all four employees were paid the exact same 
salaries. The AAO finds this detail particularly troublesome when taking into account that the restaurant 
employees are paid hourly wages rather than flat salaries and are not likely to work the exact same number of 
hours with identical wages earned for all employees. 
On appeal, counsel asserts that the director erred by assuming that any job duties that were not specifically 
assigned to the beneficiary's subordinates were and are probably performed by the beneficiary himself. 
Counsel claims that, contrary to the director's assumption, the petitioner's kitchen manager purchases the 
restaurant supplies, the vice president handles the marketing and advertising, while an outside accountant 
handles daily financial transactions. However, 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 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980). In the present matter, the petitioner has not provided documentary evidence 
to support its claim that it employed an outside accountant to relieve the beneficiary from having to perform 
the non-qualifying operational tasks associated with this function at the time of filing. Neither the 2005 tax 
return nor the 2005 W-2 statements suggest that an accountant was employed prior to the petition's filing. 
Although these documents do not address the petitioner's staffing at the time of filing, the relevant year's tax 
documentation has not been submitted for the AAO's review. As such, the AAO can only consider the 
documents that have, in fact, been submitted. 
Counsel also compares the instant petitioner to petitioners in prior unpublished AAO decisions, which 
counsel cites in support of her argument. However, counsel has furnished no evidence to establish that the 
facts of the instant petition are analogous to those in the unpublished decision(s). Furthermore, even if the 
facts of the case cited by counsel were analogous to those in the present matter, 8 C.F.R. $ 103.3(c) provides 
that only AAO precedent decisions are binding on all USCIS employees in the administration of the Act. 
Unpublished decisions are not similarly binding and thus will be given no consideration in the current 
proceeding. 
Next, counsel provides further explanation of how the beneficiary's proposed employment fits the definitions 
of both managerial and executive capacity. Counsel refers to the beneficiary's managerial subordinates, 
asserting that they are the first-line supervisors that oversee the day-to-day operation of the restaurant while 
the beneficiary oversees the managerial employees and uses his authority to make discretionary decisions. 
However, even if that were currently the case, the record does not have sufficient evidence to document the 
Page 7 
petitioner's staffing at the time of filing. Despite the claims the petitioner has made as to the positions that 
are currently filled within its organizational hierarchy, there is no documentation to establish which of these 
positions were filled at the time the petition was filed. To be more specific, the petitioner's August 2007 
work schedule lists a total of ten workers, not including the beneficiary. However, the Form 1-140 indicates 
that only eight employees had been hired by the time the petition was filed, thereby indicating that the 
petitioner had at least three fewer employees in October 2006 than it purportedly has at the present time. The 
record does not clarify who the eight employees were and which positions they filled, and no corroborating 
evidence was submitted to establish that eight employees were actually employed at that time. Counsel 
argues that the director ought not make adverse findings absent affirmative evidence. However, the opposite 
is true. Absent affirmative evidence to establish the claims being made, the AAO cannot assume that either 
counsel's or the petitioner's claims are credible. Thus, in light of the uncertainty with regard to the 
petitioner's staffing at the time of filing, the AAO cannot assume that the petitioner was able to relieve the 
beneficiary from having to primarily engage in the performance of the restaurant's daily operational tasks as 
of October 25,2006. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. 5 204.56)(5). The AAO will then consider this information in 
light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the petitioner's overall 
ability to relieve the beneficiary from having to primarily perform the daily operational tasks. In the present 
matter, the record lacks a comprehensive description of the beneficiary's day-to-day tasks and does not 
adequately establish the availability of support personnel who would perform the petitioner's daily operational 
tasks such that the beneficiary would be able to primarily focus on the performance of managerial or 
executive duties. In the present matter, the only component that the petitioner has established to a sufficient 
degree of certainty is the beneficiary's position with the organizational hierarchies of the foreign and U.S. 
entities, while the remaining components, particularly the beneficiary's past and proposed job duties and each 
entity's ability to relieve the beneficiary from having to primarily perform non-qualifying tasks, remain in 
question. Although the petitioner has submitted a supplemental letter dated February 26, 2008, attempting to 
provide further insight into the beneficiary's past and proposed job duties, the statements focus primarily on 
the beneficiary's discretionary authority and decision-making rather than specific tasks the beneficiary 
performed abroad and would perform within the U.S. entity. 
In fact, all of the job descriptions provided thus far attempt to establish the beneficiary's qualifying capacity 
within both entities by implication. To explain further, the petitioner discusses the non-qualifying job duties 
that others perform, indicating that by virtue of not performing those duties, the beneficiary's qualifying 
capacity is implied. Such is not the case, however. Both case law and the relevant regulatory provisions 
emphasize the need for a detailed description of the beneficiary's daily job duties, as it is the actual duties 
themselves that reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1 I08 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). While a job description alone is not enough to 
establish eligibility, as it must credibly fit an entity's business and staffing capabilities, a job description is a 
fundamental element without which eligibility cannot be established. Here, this crucial element is missing. 
lnstead of expressly delineating the beneficiary's daily tasks, the petitioner deflects this issue by referring to 
the beneficiary's subordinates, asking the AAO to assume their existence and to believe that they take on all 
restaurant-related operational tasks. Meanwhile, the petitioner asserts that the beneficiary's time abroad and 
in the United States has been and would be allocated to hiring personnel, making menu and pricing decisions, 
setting goals and policies, expanding the business, and reviewing the work performed by subordinate 
Page 8 
employees. 
 However, these assertions are not credible either with respect to the beneficiary's foreign 
employment or with respect to his prospective position with the U.S. entity. 
First, with regard to the foreign entity, the petitioner claims that the beneficiary spent 25% of his time 
formulating policies and procedures, determining the business's employment structure, and deciding which 
menu items to "push." However, no specific job duties were provided to explain how the policies and 
procedures are formulated, nor did the petitioner explain how determining the business's employment 
structure is associated with any ongoing daily tasks. Rather, this sounds like something that would have been 
part of the decision-making process during the beginning stages of the foreign business. The petitioner also 
indicated that 20% of the beneficiary's time was allotted to decisions regarding menus, pricing, and the 
services to be offered. Again, no explanation was provided as to the specific job duties performed. Although 
the petitioner claimed that 15% of the beneficiary's time was devoted to reviewing financial reports, there is 
no further explanation as to why this was done on a daily basis or why the foreign entity's restaurant required 
the daily review of financial reports. In light of this analysis, the AAO is left to question how the beneficiary 
spent 60% of his time. The petitioner's undocumented claims do not appear credible in the scheme of the 
foreign entity's business operation. 
Second, with regard to the U.S. petitioner, similar deficiencies are present. For instance, the petitioner stated 
that 25% of the beneficiary's time would be spent directing, managing, and training his subordinate 
employees. However, there are no specific job duties associated with the beneficiary's general personnel 
management responsibility. Next, the petitioner indicated that 30% of the beneficiary's time would be 
allotted to executive decision-making and development of goals and policies. Examples of the decision- 
making included deciding the petitioner's employment structure and assigning job duties. However, the 
petitioner did not explain why establishing the employment structure is something that would need to be done 
on a daily basis or, more importantly, why this is something that needs to be done beyond the company's 
initial stage of development. The petitioner also did not explain what job duties are entailed in directing the 
organization, which was included in the 30% discussed herein. The petitioner indicated that 10% of the 
beneficiary's time is devoted to hiring, firing, and promoting personnel. However, the size of the petitioner's 
staff at the time of filing, even if it were adequately documented, does not explain how hiring, firing, and 
promoting employees is something the beneficiary would be required to do on a daily basis. Thus, at least 
65% of the beneficiary's time has been unaccounted for with actual enumerated job duties. 
In summary, the petitioner has not provided sufficient information or supporting documentation to warrant a 
withdrawal of the director's decision. Therefore, based on the two grounds of ineligibility discussed above, 
this petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's decision. Specifically, contrary to the director's finding, the 
AAO is not satisfied that the evidence of the petitioner's ownership as submitted thus far is sufficient to meet 
the requirement in 8 C.F.R. 204.56)(3)(i)(C), which states that the petitioner must establish that it has a 
qualifying relationship with the beneficiary's foreign employer. In the present matter, the petitioner initially 
provided its articles of incorporation in which Article Four stated that the U.S. entity is authorized to issue up 
to 50,000 shares of its stock. The stock certificate that accompanied the articles of incorporation conveyed 
the same information and further showed that the petitioner issued 25,500 shares of its stock, or 5 1%, to the 
foreign entity. Although both documents are dated in 2004, it is noted that Schedule L of the petitioner's 
2005 tax return does not show that the petitioner received any monetary compensation in exchange for its 
issuance of stock. 
In response to the RFE, the petitioner claimed that the stock certificate referenced above was not properly 
issued and was therefore invalid. However, no mention was made of the petitioner's articles of incorporation, 
which the AAO assumes remained valid. That being said, the AAO notes an inconsistency between stock 
certificate no. 5, which shows that 510 out of an authorized 1,000 shares were issued, and the petitioner's 
articles of incorporation, which showed that 50,000 shares were authorized for issue. 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). The 
inconsistency discussed herein has not been resolved. Furthermore, the petitioner has not provided any 
evidence documenting the foreign entity's payment for the issued stock, despite the fact that this 
documentation was expressly requested in the RFE. The director's finding with regard to the petitioner's sale 
of stock suggests an apparent oversight of the petitioner's failure to submit highly relevant documentation, 
which is necessary to resolve the inconsistency noted above. 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). 
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 MO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the MO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
As a final note, counsel makes a brief reference to the petitioner's previously approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by USCIS than nonimmigrant 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. $ 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cf: $8 204 and 214 of the Act, 8 U.S.C. $8 1154 and 1184; see also $ 316 of the Act, 8 U.S.C. $ 1427. 
In addition, each nonirnmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. USCIS is not required to assume the 
burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. The approval of a nonimmigrant 
petition in no way guarantees that USCIS will approve an immigrant petition filed on behalf of the same 
beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the initial nonimmigrant petition was 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 USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Moreover, it should be noted that 
USCIS records indicate the petitioner's L-1A extension petition was denied and that the subsequent appeal 
was dismissed (SRC 05 235 5 1872). 
Finally, the MO'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. 5 1 (2001). 
In conclusion, 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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.