dismissed EB-1C Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rm. 3000 
Washington, DC 20529-2090 
MAIL. STOP 2090 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
k '8 ($ 
Office: NEBRASKA SERVICE CENTER Date: 0 fc 0 1 2008 
LIN 07 065 52658 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 4 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. 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
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, a Texas limited liability company, claims to operate a convenience store and to be a subsidiary 
of the beneficiary's purported foreign employer located in Pakistan. 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. !.j 1 153(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition concluding that the petitioner failed to establish that it would employ the 
beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's findings, asserts that the beneficiary will be employed in a 
managerial or executive capacity, and submits a brief in support of his 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. 
Page 3 
Title 8 C.F.R. tj 204.5(j)(3) explains that a petition filed for a multinational executive or manager under 
section 203(b)(l)(C) must be accompanied by a statement from an authorized official of the "petitioning 
United States employer" which demonstrates that: 
(A) 
 If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) 
 If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the fm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimrnigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) 
 The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) 
 The prospective United States employer has been doing business for at least one year. 
The primary issue in this proceeding is whether the petitioner provided sufficient evidence to establish that it 
will employ the beneficiary in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 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) 
 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 4 
(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 fiom higher level executives, 
the board of directors, or stockholders of the organization. 
In the Form 1-140, the petitioner claims to employ five workers in its operation of a single-location 
convenience store called "Express Mart." The petitioner describes the beneficiary's proposed duties as 
"president and general manager" of this operation in a letter dated November 1,2006 as follows: 
Specific job duties will include: (i) Negotiating and supervising the drafting of purchase 
agreements; (ii) Developing trade and consumer market strategies; (iii) Hiring appropriate 
personnel and leasing equipment and retail distribution facilities; (iv) Overseeing the legal 
financial due diligence process and resolving any related issues; and (v) Developing and 
implementing plans to ensure [the petitioner's] profitable operation. 
Percentage of time spent on each Duty: 
Description Time % 
I Management Decisions 1 25% I 
I Supervision of the company day to day operations 
 1 15% 
Company 
Financial Representation 
10% 
15% 
Business 
Organizational Developments 
-- 15% 
10% 
LIN 07 065 52658 
Page 5 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary at the top of the organization directly supervising an "operations and accounts manager." The 
"operations and accounts manager" is, in turn, portrayed as supervising a "purchase agent," "store managers," 
and "assistant managers." However, as the petitioner asserts that it employs five people in the Form 1-140, 
and as the organizational chart identifies five positions, the petitioner's use of the plural form for "store 
manager" and "assistant manager" does not appear to relate to the petitioner's present staffing arrangement. 
Finally, the petitioner described the duties of the "operations and accounts manager" in an attachment to the 
organizational chart as follows: 
Research, compile and analyze statistical data to determine feasibility of buying merchandise 
for retail wireless stores. Establish price objectives for contract transactions. Interacts with 
vendors and analyzes vendors' operations to determine factors that affect prices. Prepares 
reports, charts, and graphs of findings. Evaluates findings and make recommendations 
regarding feasibility of buying needed products. 
The petitioner also claims that this position requires a university degree. 
On August 27, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed job description for the beneficiary, an organizational chart, and descriptions of any subordinate 
workers. 
In response, the petitioner submitted a job description for the beneficiary as follows: 
[The beneficiary] is responsible for all our planning, expansion, banking, budgeting, and 
marketing. In addition, he hires and trains other managers and employees and is incharge 
[sic] of increasing the sales of the company. He is employed at the highest executive level 
and has complete authority to establish goals and policies and exercises discretionary 
decision-making authority based upon policies and procedures developed by shareholders. 
[The beneficiary] assumes sole responsibility of all discretionary actions taken by the U.S. 
entity to ensure its profitable operation. 
The petitioner also submitted a breakdown of the amount of time the beneficiary will devote to each of his 
ascribed duties which differs materially from the breakdown submitted with the initial petition. 
The petitioner also submitted a more detailed, and materially different, organizational chart for the United 
States operation. The chart again shows the beneficiary at the top of the organization directly supervising an 
"operations and accounts manager," who is identified as The "operations and accounts 
manager" is, in turn, portrayed as supervising directly or indirectly a "purchase agent," a "stock clerk," a 
"store manager," and two "assistant managers." The petitioner claims that all of the workers identified in the 
organizational chart, except for the "stock clerk," are full-time employees. 
Page 6 
However, the petitioner submitted Forms W-2 for 2006. It is noted that the instant petition was filed on 
November 22, 2006. The Forms W-2 indicate that 
 the alleged "operations and accounts 
manager," was paid a total of $1,224.00 in 2006. The petitioner's payroll records indicate that earned 
this income over a four-month period (September 2006 through December 2006) by working no more than 32 
hours over each two-week period, for a total of 204 hours, for a wage of $6.00 per hour. The other three 
workers claimed to be employed at the time the petition was filed ((1 and 
were similarly 
 records indicate that, as of November 18, 2006,- 
worked 24 hours in a 
 36 hours, andworked 28 hours. A similar 
dated December 2, 2006, records 
 28 hours, having worked 36 hours, and 
having worked 24 hours, all within a two-week period. Accordingly, it appears that the beneficiary was the 
only worker employed on a full-time basis by the petitioner. The other four workers each worked 36 hours or 
less every two weeks. 
On December 12, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the director erred, claims that the beneficiary will be employed in a managerial 
or executive capacity, and submits a brief in support of his arguments. Counsel also argues that the 
beneficiary's subordinate employees are professionals. 
Upon review, counsel's assertions are not persuasive in establishing that the beneficiary will be employed in a 
primarily managerial or executive capacity. 
As a threshold issue, the petitioner's attempt in response to the Request for Evidence and on appeal to 
materially change the beneficiary's job description by altering the amount of time to be devoted to his 
ascribed duties was inappropriate and will not be considered by the AAO. The purpose of a Request for 
Evidence is to elicit fbrther information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. 9 103.2(b)(8). When responding to a Request for Evidence, a petitioner cannot offer a 
new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or its associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). Furthermore, it is noted 
that the hiring of workers after the filing of the petition may not be considered in determining whether the 
beneficiary will primarily perform qualifying duties. 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). Accordingly, the appeal will be 
adjudicated based on the breakdown of the beneficiary's job duties submitted with the initial petition and on 
the number of workers employed at the time the instant petition was filed. 
In examining the executive or managerial capacity of the beneficiary, Citizenship and Immigration Services 
(CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 204.5Cj)(5). The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Page 7 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary has the authority to "establish goals 
and policies," exercises "discretionary decision-making authority based upon policies and procedures," 
establishes marketing strategies, and implements plans to ensure "profitable operation." The petitioner also 
claims that the beneficiary will devote most of his time to "management decisions," supervision of day-to-day 
operations, and "representation" of the business. However, the petitioner fails to specifically describe these 
policies, procedures, goals, decisions, or plans, or explain what, exactly, the beneficiary will do to manage, 
supervise, or represent the business other than by performing first-line supervisory tasks in his administration 
of a single-location convenience store. The fact that the petitioner has given the beneficiary a managerial or 
executive title and has prepared a vague job description which includes inflated job duties does not establish 
that the beneficiary will actually perform managerial or executive duties. Specifics are clearly an important 
indication of whether a beneficiary's duties will be primarily executive or managerial in nature; otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Id. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in his operation of the business. As noted above, the petitioner asserts that the beneficiary 
will ''supervise," "represent," and "manage" the operations of the petitioner. However, it appears that the 
beneficiary is assisted in the operation of the convenience store by four part-time workers who are described 
as performing the tasks necessary to the provision of a service or the production of a product. The petitioner 
does not appear to employ workers dedicated to relieving the beneficiary of the need to perform the non- 
qualifying tasks inherent to his ascribed duties, e.g., marketing, supervising part-time staff, banking, and 
negotiating contracts. In addition, as the beneficiary's subordinate workers have not been established to be 
professionals (see infra), it has not been established that these first-line supervisory or contract negotiation 
tasks will be qualifying duties. The petitioner also does not appear to employ any workers dedicated to 
relieving the beneficiary of the need to perform the non-qualifying tasks inherent to the operation of the 
described business in general, e.g., filing, correspondence, and payroll. Accordingly, it appears more likely 
than not that the beneficiary will primarily perform non-qualifying administrative or operational tasks in his 
administration of the enterprise. 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 International, 19 I&N 
Dec. 593,604 (Comm. 1988). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise four part-time convenience store workers. 
However, none of these workers is described as having any supervisory or managerial responsibilities over 
any other workers. The arbitrary placement of an employee in a position superior to another employee on an 
organizational chart will not establish that this employee, e.g., the "operations and accounts manager," is a 
Page 8 
bona fide supervisory or managerial employee. Rather, the employee must be shown to possess some 
significant degree of control or authority over the employment of subordinates. Accordingly, it appears that 
the beneficiary will be, at most, a first-line supervisor of four convenience store workers. A managerial 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter 
of Church Scientology International, 19 I&N Dec. at 604. 
Moreover, the record is not persuasive in establishing that any of these workers is a professional. In 
evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 8 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by the subordinate employee. The possession of a 
bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an employee 
is employed in a professional capacity as that term is defined above. As the petitioner failed to establish the 
skills or education required to perform the duties of the subordinate workers, it has not been established that 
any of the workers is a bona fide professional. Once again, going 'on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190. 
Accordingly, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity. ' 
1 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. 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. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary will manage an essential function, the petitioner must fUrnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, 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. See 8 C.F.R. $8 204.5(j)(2) and (5). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
will manage the function rather than perform the tasks related to the function. In this matter, the petitioner 
has not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record indicates that the beneficiary will more likely than not primarily perform non-qualifying 
tasks and be a first-line supervisor of non-professional workers. Absent a clear and credible breakdown of the 
Page 9 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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 101(a)(44)(B) of the Act. 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 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-day 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. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The beneficiary's job description is 
so vague that it cannot be discerned what, exactly, the beneficiary will do on a day-to-day basis. Also, as 
explained above, it appears more likely than not that the beneficiary will primarily perform administrative or 
operational tasks and work as a first-line supervisor of non-professional workers. Therefore, the petitioner 
has not established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 13 13, 13 16 (9# Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991)); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, 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). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
in a primarily managerial or executive capacity. 
In a letter dated November 1, 2006, the petitioner described the beneficiary's duties abroad as "executive 
manager" as follows: 
[The beneficiary] developed, implemented, and consistently applied business-related policies 
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties 
will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function 
manager. See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Page 10 
to optimize the quality of the organization and employees. [The beneficiary] also negotiated 
client contracts and promoted sales of products and services, and was responsible for the 
recruitment, hiring, promotion, discipline, and discharge of the personnel. In addition, [the 
beneficiary] developed and implemented marketing strategies using current market 
information, competitive and economic conditions, and innovative programs. Furthermore, 
[the beneficiary] developed pricing strategies, and responded to internal and external 
customer inquiry. [The beneficiary] also met with the appropriate officials to propose 
transactions, negotiates confidentiality and service agreements, coordinated the due diligence 
process with in-house counsel and outside auditors, and directed the preparation and 
completion of sale contracts and other related documents. 
The petitioner also submitted an organizational chart for the foreign employer in which the beneficiary is 
shown to be at the top of the enterprise supervising a complex organization consisting of twelve subordinate 
workers arranged in a four-tiered hierarchy. 
Finally, the petitioner submitted job descriptions for the beneficiary's purported subordinate workers abroad. 
The claimed subordinate manager positions are described as requiring college degrees and as having 
supervisory authority over other workers. 
However, upon review, the record is not persuasive in establishing that the beneficiary was primarily 
performing managerial or executive duties abroad. In support of the petition, the petitioner submitted vague 
and non-specific job descriptions which fails to sufficiently describe what the beneficiary and his claimed 
subordinate workers did on a day-to-day basis. Specifics are clearly an important indication of whether a 
beneficiary's duties were primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, afd, 905 
F.2d 41. Absent detailed descriptions of the duties of both the beneficiary and his purported subordinates, it 
is impossible for CIS to discern whether the beneficiary was "primarily" engaged in performing managerial or 
executive duties abroad and whether he managed managerial, supervisory, or professional employees. See 
sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. 
at 604. 
Accordingly, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the petition may not be approved for this additional reason. 
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), afd, 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). Therefore, based on the additional ground of ineligibility as discussed above, 
this petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
Page 11 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, ard, 345 F.3d 
683. 
As a final note, CIS records indicate that the beneficiary has previously been approved for L-1 employment 
with the instant petitioner. However, 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 CIS 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 $9 101(a)(44)(A) and (B) of the Act, 8 U.S.C. tj 1 101 (a)(44). Although the statutory definitions 
for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. CJ §§ 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, 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. $ 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 Form 1-129 nonimmigrant 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 proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texas A&M 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 
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 at 22; Fedin Brothers Co. 
Ltd. v. Suva, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petition was 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. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
LIN 07 065 52658 
Page 12 
In addition, 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 nonimrnigrant 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.), am, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.