dismissed EB-1C Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Date: 
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) 
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. 
/ 
obert P. Wiemann, Director 
Appeals Office 
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 appeal will be dismissed. 
The petitioner is a corporation organized in the State of Florida in November 2000. It owns and operates two 
retail dollar stores. It seeks to employ the beneficiary as its area manager. 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 on November 12, 2004, determining: (1) that the petitioner had not 
established that the beneficiary had been employed in a managerial or executive capacity for the foreign 
employer for the required time period prior to entering the United States as a nonimmigrant; (2) that the 
"petitioner failed to verify that they are indeed 'doing business' in the foreign company or in the U.S. 
company;" and, (3) that the petitioner had not provided proof of the qualifying relationship between the U.S. 
company and the foreign companies. 
On appeal, counsel for the petitioner asserts that the beneficiary's foreign employer, a Tanzanian sole 
proprietorship, was purchased and merged into a Pakistani registered partnership creating a qualifying 
parentlsubsidiary relationship between the foreign entity and the United States petitioner. Counsel also 
asserts that the beneficiary occupied a qualifying position the foreign company and the United States 
petitioner. Counsel submits a brief and re-submits documents,already in the file. 
Section 203(b) of the Act states in pertinent p_art: 
(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): 
i 
(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 atfleast 1 year by a firm or corporation 
or other legal entity or an affiliate or sybsidiary 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'affilike thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal,&entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same ehty, 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 that indicates that the alien is to be employed in the qnited States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to 'be performed by the alien. See 8 C.F.R. 
8 204.5(j)(5). 
Preliminarily, the AAO will comment on the requirement that any document containing foreign language 
submitted to Citizenship and Immigration Servi~es [CIS) must be accompanied by a full English language 
translation which the translator has certified as complete and accurate and that the translator is competent to 
translate from the foreign language into English. See 8 C.F.R. § 103.2(b)(3). The director in this matter 
observed that the beneficiary had translated some of the foreign documents. The director determined that 
because the beneficiary was not a "certified translator," the translated documents were not acceptable. 
Counsel contends that the regulation does not require that the translator the petitioner uses must be from a 
translation agency but only that the translation must be accompanied by a certification declaring the 
translator's competency to translate and that the translation is a true and coriect translation. The AAO agrees 
with counsel's premise. 
In this matter, however, the AAO questions the competency of the translator of the foreign documents in the ' 
record. The translator (beneficiary) has signed a "translator's certificate" certifying the 'translator is competent 
to translate and that the translation is true and accurate to the best of his ability; however, the record contains 
only a two-page translation for several purported foreign business licenses (exhibits six through twelve). The 
business licenses appear similar but even to the untrained eye contain some differences. A translator must 
provide true and accurate translations for each document, not a general translation that is purportedly 
applicable to all similar documents. 
Although the translation of the business licenses is questionable, even if the translations are accepted as 
evidence, the AAO does not find these documents ~elevant to the issues of qualifying relationship and the 
beneficiary's claimed employment in a managerial oi executive capacity for one year with a qualifying entity 
prior to entry into the United States as a nonirnrnigrz&nt. 
The director in this matter focuses on whether the beneficiary was employed by a qualifying entity in one of 
the three years preceding his entry into the United States as nonimmigrant. In order to qualify for this visa 
classification, the petitioner must establish that a qualifying relationship exists between the United States and 
foreign entities in that the petitioning company is the same employer or an affiliate or subsidiary of the foreign 
entity. 
The regulation at 8 C.F.R. 8 204.56)(2) states in pertinent part: 
Afiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
The record shows that the petitioner, incorporated November 1, 2000, is a wholly-owned subsidiary of Metal 
Convertor's, a Pakistani registered The petitioner indicates that the beneficiary had been 
employed by a sole proprietorship operating a wholesale store in Lindi, Tanzania since 1996 The petitioner 
states that Metal Convertors, its foreign parent company, purchased the Tanzanian sole proprietorship in 
August 2001, transferred the Tanzanian sole proprietorship's assets to Metal Convertors, and liquidated the 
Tanzanian sole proprietorship's inventory. The petitioner provides a 'copy of a purchase and sale agreement 
dated August 27, 2001 that indicates it is Metal Convertors intention to transfer the beneficiary to the United 
States upon the completion of the purchase of the sole proprietorship. The record shows that the beneficiary 
entered the United States in April 2001 on a B-2 visa and that his status was changed to an L-1A 
intracompany transferee on April 13,2002. Counsel asserts in a ~e~tember 21,2004 response to the director's 
notice of intent to deny that the beneficiary continued his employment as a general manger of the wholesale 
store in Tanzania after his entry into the United States in April 2001, became an executive and manager for 
Metal Convertors, and served in that capacity for 12 months during the three years preceding his entry into 
the United States. 
The director determined that the petitioner had not substantiated that the beneficiary was working for the 
foreign subsidiary for one year prior to his transfer to the United States and that the petitioner had not 
submitted credible evidence to verify that the foreign entity had purchased the Tanzanian sole proprietorship. 
Thus, there was no proof of the relationship between the United States petitioner and the foreign entity. 
Counsel asserts that it is not necessary for the beneficiary to have worked directly for the petitioner's Pakistani 
parent company to be eligible for t~s visa classification; rather that it is enough that he worked for the 
Pakistani's subsidiary in Tanzania which subsequently merged into and became part of the Pakistani 
company. Counsel references Matter of Chartier, 16 I&N Dec 284 (August 3, 1977) and contends that the 
Chartier Court stated: "it could see no reason why a distinction was made between the United States 
companies with subsidiaries abroad, and the United States companies with employees abroad who work 
directly with the parent company." 
Counsel's assertions are not persuasive. The petitioner must establish that the petitioning company is the same 
employer or an affiliate or subsidiary of the beneficiary's foreign employer. The petitioner does not claim that it 
is the same employer as the beneficiary's foreign employer nor does it claim that it is an affiliate of the 
beneficiary's foreign employer. The petitioner claims that it is a subsidiary of the beneficiary's foreign employer. 
Counsel and the petitioner arrive at this conclusion by indicating that the beneficiary's foreign employer, a 
Tanzanian sole proprietorship, was purchased and subsumed into the petitioner's parent company. 
However, the petitioner has not provided documentary evidence that the Tan~anian~entity continued to exist 
after the petitioner's parent company purchase. The record suggests that the Tanzanian entity was liquidated 
and no longer existed when the Form 1-140, Petition for Immigrant Worker, was filed in January 2003. The 
record does not contain any evidence that the beneficiary ever worked for the petitioner's parent company in 
any position after the liquidation of the Tanzanian sole proprietorship. The petitioner was never connected to 
the beneficiary's foreign employer as the beneficiary's foreign employer ceased to exist when it was purchased 
and liquidated in August 2001. The beneficiary cannot claim to have entered the United States in Apnl 2002 
to continue to render services to the same employer (as the Tanzanian sole proprietorship), or an affiliate or 
subsidiary of the Tanzanian sole proprietorship. The petitioner in this matter is not the "same employer" as 
the beneficiary's foreign emplo;er because the beneficiary's foreign employer was a distinct legal entity 
separate and apart from the petitioner which ceased operations on or/before August 2001. 
The purchase of the Tanzanian sole proprietorship's assets and liquidation of its inventory does not result in - 
the transfer of the beneficiary's employment to that of the purchaser/liquidator. An employment-based 
immigration classification can be based on an ongoing qualifying relationship between a parent and branch 
office, a parent and subsidiary, or two affiliates possessing the required common ownership and control. The 
AAO again emphasizes that in the context of this immigrant visa classification, the qualifying relationship 
must exist when the petition was filed. 
Counsel also fails to establish the relevance of the Matter of Chartier, to this proceeding. Matter of Chartier 
involved an L-1A intracompany transferee not an employment-based immigrant petition. Further, counsel 
misquotes the Matter of Chartier decision-makers in his brief. The petitioner has not established that a 
qualifying relationship existed between the petitioner and the beneficiary's foreign employer when the petition 
was filed. For this reason, the petition will not be approved. 
Counsel also notes that CIS previously found a valid relationship between the companies when it approved an 
L-1A petition filed by the petitioner on behalf of this beneficiary and contends that the Form 1-140 should 
have been approved as it is based on the same facts. The AAO acknowledges that CIS approved other 
petitions that had been previously filed on behalf of the beneficiary. With regard to the similarity of the 
eligibility criteria, 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. tj 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 nonimrnigrant 
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: $3 204 and 214 of the Act, 
8 U.S.C. $9 1154 and 1184; see also 9 316 of the Act, 8 U.S.C. $ 1427. 
In general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonirnmigrant petitions. Accordingly, many Form 1-140 immigrant petitions are denied after CIS 
approves prior nonimmigrant Form 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because CIS spends less time revieiing 
Form 1-129 nonimmigrant petitions than Form 1-140 immigrant petitions, some nonimmigrant L-1A petitions 
are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Sppp. 2d at 29-30; see also 8 C.F.R. 
$ 214.2(1)(14)(i)(requiring no supporting documentation to file a peJition to extend an L-1A petition's 
validity). 
Moreover each nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of 
proof; each petition must stand on its own individual merits. See 8 C.F.R. 9 103.8(d); 8 C.F.R. 
$ 103.2(b)(16)(ii)The approval of a nonimmigrant petition doesnot guarantee that CIS will approve an immigrant 
petition filed on behalf of the same beneficiary. As the evidence submitted with this petition does not establish 
eligibility for the benefit sought, the director was justified in departing from previous nonimmigrant approvals by 
denying the immigrant petition. 
In addition, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The MO 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). 
Further, 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 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.), afld, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). The petitioner has not provided evidence or argument on appeal 
sufficient to overcome the director's decision. 
Finally, the MO observes that as the director was justified in departing from the previous nonimmigrant 
approvals in this matter; the dire,ctor.phould review the previous nonimmigrant approvals for revocation 
pursuant to 8 C.F.R. $ 214.2(1)(9)(iii). '' 
Beyond the decision of the director, the petitioner did not establish tGat the beneficiary was employed in a 
managerial or executive capacity fdr one year in the three years preceding his entry into the United States as a 
nonimmigrant . 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 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; 
. . 
11. supervises and controls the work gf other supervisory, professional, or 
managerial employees, or manages an essential function within the 1 
organization, or a department or subdivision of the organization; 
L 
. . . m. if another employee or other employees are directly supervised, has the 
authority to hire and fire or recoinmend 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 l~ne 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. 1101(a)(44)(B), provide's: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. 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; 
... m. exercises wide latitude in discretionary decision making; and 
iv.  receive*^ only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Counsel for the petitioner indicates in a January 27, 2003 letter appended to the petition that the beneficiary 
was employed as a general manager for the Tanzanian sole proprietorship. Counsel states that the beneficiary 
"manages the store and its staff, including hiring and firing employees, establishing policy and procedure, and 
exercises discretionary control over the daily activities of the business." Counsel claimed that a sales 
manager and a cashierloffice manager reported to the beneficiary.in his position as general manager for the 
Tanzanian sole proprietorship. 
In an undated attachment to the petition, the petitioner indicated that the executive and technical skills 
required to perform the overseas duties included: 
Ability to plan, develop and establish policies and objectives for firm, ability to work together 
with other executives and managers to develop organizational policies and coordinate 
functions and operations and to establish responsibilities and procedures for obtaining 
objectives; ability to analyze financial information and prepare budgets; ability to 
communicate with staff, clients, vendors and vendees; ability to understand marketing 
strategy and implement marketing strategies. 
The petitioner indicated in the same attachment that the beneficiary spent 90 percent of his time on executive 
duties. , . 
The record does not contain further information regarding the beneficiary's actual daily duties for the 
Tanzanian sole proprietorship. The record does not contain any evidence that the beneficiary worked in a : 
managerial or executive capacity for'the Pakistani registered partnership. The description of, the beneficiary's 
duties for the Tanzanian sole proprietorship is general and does not establish that the beneficiary spent the 
majority of his time performing managerial or executive duties: Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or man~gerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. at 1103. Although the petitioner claimed that the Tanzanian sole proprietorship employed a sales 
manager and a cashierloffice manager, the petitioner has not provided any documentary evidence to establish 
this claim. The record does not substantiate'that the beneficiary was relieved of performing the daily 
operational tasks associated with operating a wholesale store. An employee who primarily performs the tasks 
necessary to produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. Matter of Church Scientology International, 19 I&N Dec. at 604. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N 6ec. 15 8, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
,.. 
The record does not establish that the beneficiary's duties for a foreign entity were in a managerial or 
executive capacity. For this additional reason, the petition will not be approved. 
. ., -.,* .., 
Furthermore, the petitioner has not established that the beneficiary's duties for the United States entity will 
comprise primarily managerial or executive duties. The petitioner has provided a general description of the 
beneficiary's duties for the petitioner. In a January 27, 2003 letter appended to the petition, counsel for the 
petitioner indicated that the beneficiary: 
Directs and coordinates activities of subordinate managerial personnel involved in operating 1 retail chain stores in assigned area: Interviews and selects individuals to fill managerial 
vacancies. Maintains employment records for each manager. Terminates employment of 
store managers whose performance does not meet company standards. Directs, through 
subordinate managerial personnel, compliance of workers with established company policies, 
procedures, and standards, such as safekeeping of company funds and property, personnel 
and grievance practices, and adherence to policies governing acceptance and processing of 
customer credit card charges. Inspects premises of assigned area stores to ensure that 
adequate security exists and that physical facilities comply with safety and environmental 
codes and ordinances. Reviews operational records and reports of store managers to project 
sales and to determine store profitability. Coordinates sales and promotional activities of 
store managers. Analyzes marketing potential of new and existing store locations and 
recommends additional sites or deletion of existing area stores. Negotiates with vendors to 
enter into contracts for merchandise and determines allocations to each store manager. 
The petitioner has provided evidence that it owns and operates two retail dollar stores. The petitioner claims 
on the Form 1-140 that it employs elght individuals. The petitioner provided an organizational chart showing 
that the beneficiary was the immediate supervisor of one full-time worker employed in store number one and 
of two full-time workers and one part-time worker in store number two. The record does not contain any 
independent evidence substantiat~ng the employment of these workers when the petition was filed. A 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 204.5Cj)(5). The description of the beneficiary's 
duties for the United States entity is general, suggesting at most that the beneficiary is-engaged -. in supervisory 
duties. However, the petitioner does not establish that the beneficiary's subordinate employees perform 
primarily managerial, supervisory, or professional tasks. Rather, the record suggests that the beneficiary is a 
first-line supervisor of individuals who perform the clerical and sales tasks associated with a retail shop. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner .must establish that the subordinate employees are supervisory, 
professional, or managerial. See $ 10 1 (a)(44)(A)(ii) of the Act. 
c 
Further, 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. An individual will not be deemed an executive under the statute simply because they have 
an executive title or because they "direct" the enterprise. The petitioner has not provided evidence that the 
petitioner has continuously employed individuals subordinate to the beneficiary that hold managerial, 
supervisory, or professional positions. i 
The petitioner has not established that the beneficiary's position with the United States entity will be primarily 
managerial or executive. For this additional reason, the petition will not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition 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.