dismissed EB-1C Case: Retail

US. Department of Homelsnd Security 
U.S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
identifying data &feted to 
 U. S. Citizenship 
prevent clearly unwarranted and Immigration 
invasion of personal pri~acy 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(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 or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner owns and operates a chain of membership shopping warehouses located primarily in Latin 
America. It seeks 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. $ 1153(b)(l)(C), as a multinational 
executive or manager. The petitioner asserts that it had a qualifying relationship with the beneficiary's foreign 
employer, Servicios Ejecutivos a Pricesmart Mexico, S.A. de C.V. during the beneficiary's qualifying period 
of employment in Mexico, and at the time the beneficiary was transferred to the United States as an L-1 
nonimmigrant intracompany transferee in 2003. The petitioner seeks to employ the beneficiary in the position 
of Corporate Buyer and Distribution Center (DC) Consultant. 
The director denied the petition, concluding that the petitioner no longer has a qualifLing relationship with the 
beneficiary's foreign employer and is therefore ineligible for the immigration benefit sought. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that, in denying the 
petition, the director failed to heed the statute, regulations and relevant policy guidance pertaining to 
qualifying relationships. Counsel asserts that "the law and guidance on the law is clear that at the time of 
filing, the employer abroad does not have to be doing business as along as the U.S. petitioner has been doing 
business for at least one year and that it is doing business in at least one other country, and that the qualifying 
relationship existed between the employer aboard and the U.S. petitioner at the time of transfer of the 
beneficiary." Counsel submits a lengthy brief and supporting documentation in support of the appeal. 
Section 203(b) of the Act states in pertinent part: 
(1) 
 Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) 
 Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding 
the time of the alien's application for classification and admission 
into the United States under this subparagraph, has been employed 
for at least 1 year by a firm or corporation or other legal entity or an 
affiliate or subsidiary thereof and who seeks to enter the United 
States in order to continue to render services to the same employer or 
to a subsidiary or affiliate thereof in a capacity that is managerial or 
executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on 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 United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
5 204.56)(5). 
The primary issue in this proceeding is whether the petitioner continues to have a qualifying relationship with 
the foreign entity that previously employed the beneficiary. To establish a "qualifying relationship" under the 
Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed 
U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent and 
subsidiary" or as "affiliates." See generally 5 203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C). 
The regulation at 8 C.F.R. § 204.5('j)(2) states in pertinent part: 
Affiliate 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 petitioner filed the immigrant visa petition on July 26, 2007. In a letter dated July 19, 2007, the petitioner 
stated that the beneficiary, who is currently in the United States as an L-1A nonimmigrant intracompany 
transferee, was employed by Servicios Ejecutivos PriceSmart Mexico, S.A. de C.V. from May 2002 until her 
transfer to the United States in September 2003. The petitioner further stated: 
The requisite qualifying relationship exists between [the petitioner] and the former Employer 
abroad, Servicios Ejecutivos PriceSmart Mexico, S.A. de C.V. ("PriceSmart Mexico"), in that 
PriceSmart was the controlling company in a 50-50 joint venture with its Mexican partner, 
during which period the qualifying employment of the beneficiary took place. 
While PriceSmart Mexico is no longer part of the group, [the petitioner] maintains extensive 
international operations through other subsidiary companies and branch offices abroad that are 
involved in substantial international business, and therefore, retains the eligibility as a qualifying 
organization. 
The petitioner stated that PriceSmart Mexico opened its first retail shopping warehouse in 2002, and closed its 
warehouse club operations in February 2005, two years after the beneficiary's' transfer to the United States. 
In support of the petition, the petitioner provided a corporate organizational chart showing all domestic and 
international subsidiaries of the U.S. company. The chart indicates that the petitioner and Grupo Gigante S.A. de 
C.V., as of May 2006, each owned 50 percent of PSMT Mexico S.A. de C.V., a Mexican holding company 
established on February 1, 2002. Servicios Ejecutivos a PriceSmart Mexico S.A. de C.V. was listed as a 
subsidiary of PSMT Mexico S.A. de C.V. 
The petitioner submitted a copy of its 1996 Annual Report, which confms the petitioner's joint venture 
relationship with Grupo Gigante S.A. de C.V., and the closure of PSMT Mexico's warehouse operations as of 
February 28,2005. The annual report indicates that the joint venture sold two out of three locations in September 
2005. The petitioner also submitted a copy of its Form 10-Q, Quarterly Report Pursuant to Section 13 or 15(d) of 
the Securities Exchange Act of 1934, for the period ended May 3 1,2007. The Form 10-Q, at Note 12, states: 
In January 2002, the Company entered into a joint venture agreement with Grupo Gigante S.A. 
de C.F. ("Gigante") to initially open four PriceSmart warehouse clubs in Mexico. The Company 
and Gigante contributed $20.0 million each for a total of $40.0 million, and each owned 50% of 
the operations in PSMT Mexico, S.A. de C.V., which owned five subsidiary companies 
(collectively, "PSMT Mexico"). . . . Three warehouse clubs were eventually opened during fiscal 
year 2003. 
The director issued a request for additional evidence (EWE) on February 22, 2008, in which he instructed the 
petitioner, inter alia, to submit documentary evidence to establish the qualifying relationship between the U.S. 
entity and the entity which employed the beneficiary in the joint venture. The director requested annual 
reports, articles of incorporation, financial statements, and/or evidence of ownership of all outstanding stock 
for both entities. 
In a response dated May 14,2008, the petitioner submitted: (1) a copy of the petitioner's Form 1-797 Approval 
Notice for its Blanket L petition (WAC 03 058 55302), which lists PriceSmart Mexico S.A. de C.V. as a 
foreign subsidiary, indicating a 50-50 joint venture relationship; (2) a summary translation of the articles of 
incorporation of PSMT Mexico, S.A. de C.V., which indicates that the petitioner owns 25 Series "A" shares 
of the foreign entity's stock, while Grupo Gigante owns 25 Series "B" shares; (3) a partial copy of the 
petitioner's Form 10-K for the period ended August 3 1, 2006, in which PSMT Mexico and the beneficiary's 
former Mexican employer are listed as 50% owned subsidiaries of the petitioner; and (4) the consolidated 
financial statements of PSMT Mexico, S.A. de C.V. for the years ended December 3 1,2005,2004 and 2003, 
which indicates that PSMT Mexico owns 99.99% of the shares of Servicios Ejecutivos a Pricesmart Mexico, 
S.A. de C.V. 
The petitioner also submitted a copy of its 2007 Annual Report, which indicates the following at Note 16 to 
the Consolidated Financial Statements: 
On October 31, 2007, Grupo Gigante S.A. de C.V. purchased all 164,046 shares held by [the 
petitioner] in PSMT Mexico for $2.0 million, thereby allowing Grupo Gigante S.A. de C.V. 
to assume 100% control and ownership of PSMT Mexico. 
In a letter dated May 14, 2008, counsel for the petitioner emphasized that the petitioner was "the ultimate 
controlling company in a 50-50 joint venture with its Mexican partner, during which period the qualifying 
employment of the beneficiary took place." 
Counsel further stated: 
While PSMT Mexico and its subsidiaries are no longer part of the group, [the petitioner], the 
parent company, maintains extensive international operations through other subsidiary 
companies and branch offices abroad that are involved in substantial international business 
and, therefore, retains the eligibility as a qualifying organization as per 8 C.F.R. $ 
2 14.2(L)(ii)(G)(2). 
The dissolution or cessation of PSMT Mexico does not preclude an alien beneficiary's 
eligibility as an L- 1 intracompany transferee since section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1101(a)(15)(L) requires only the employment of the 
beneficiary outside the U.S. by the foreign organization for one year prior to entry. See 
Matter of Thompson, 18 I&N 169 (BIA 1981). Furthermore, the continued existence of the 
foreign employer of the United States employer is not required. See Matter of Chartier, 16 
I&N Dec. 284 (BIA 1977). 
The director denied the petition on June 16, 2008, concluding that the petitioner failed to establish that the 
U.S. and foreign entities maintained a qualifying relationship at the time the petition was filed. The director 
noted that "the 50150 joint venture relationship between the petitioner and the beneficiary's foreign employer 
was severed when the joint venture was dissolved." 
The director noted that counsel's reliance on the statute and regulations governing L-1 regulations was not 
persuasive in the context of this immigrant visa petition. The director emphasized that the petitioner must 
establish eligibility at the time of filing the immigrant visa petition, and thus determined that the fact that the 
qualifying relationship existed at the time the beneficiary was transferred to the United States does not exempt 
the petitioner from its burden to establish the existence of an ongoing qualifying relationship with the 
beneficiary's previous foreign employer. The director found that while the precedent decisions and arguments 
employed by counsel were relevant with regard to nonimmigrant L-1A petitions, the same is not true with 
regard to Form 1-140 immigrant petitions such as the one filed by the petitioner in the present matter. 
On appeal, counsel for the petitioner asserts that the director's position is "contrary to statutory and regulatory 
authority, congressional intent, and thus is an abuse of discretion." Counsel asserts that the record does not 
demonstrate a qualifying relationship existed "because this relationship no longer existed at the time of filing 
nor is it a legal prerequisite for filing that the employer where the beneficiary worked prior to transferring to 
the U.S. in L-1A status had to be doing business at the time of filing the immigrant petition." 
In support of this claim, counsel refers to a USCIS memorandum issued by Michael Aytes on September 12, 
2006, which revised Chapter 22 to the Adjudicator's Field Manual (AFM).' Counsel asserts that "Mr. Aytes 
explains very well on page 46 that '[bloth the U.S. employer and at least one qualifying organization abroad 
must be doing business up until the time of visa issuance of status."' Counsel contends that the director "did 
not bother to understand the laws nor did he or she bother to properly read the adjudications manual." 
Counsel quotes from section 203(b)(l)(C) of the Act, stating that the statute "makes no mention whatsoever to 
the status of the specific employer abroad at the time of filing, nor can any such status be implied, assumed or 
deduced." Counsel further asserts that the definition of "multinational" at 8 C.F.R. 9 204.5('j)(2) states that 
"the qualifying entity" must be doing business in two or more countries, one of which is the United States." 
Counsel emphasizes that the definition of multinational "does not specify that it must conduct business in the 
country from where the beneficiary of the 1-140 petition was transferred, nor does it specify that the employer 
abroad has to be the one conducting business." Counsel asserts that in this case, the beneficiary's foreign 
employer has numerous affiliate companies that were continuing to do business. 
Counsel further states: 
The regulatory definition of qualifying organization as it applies to the L-1 category at 8 CFR 
214.2(l)(ii)(G)(2) and for multinational, as stated in 8 CFR Section 204(j)(2) are not identical 
but the concept is the same - that the petitioner be doing business in the U.S. and, through a 
qualified corporate entity, in at least one other country. The criteria for L-1A and EB13 are 
too similar to believe that Congress intended the kind of result that has now occurred by the 
denial of this underlying petition. 
Finally, counsel argues that "the congressional intent for both immigrant and nonimmigrant multinational 
managers and executives is the ability to move personnel on a global scale and to facilitate the growth of 
' See Memorandum of Michael Aytes, Acting Assoc. Dir., USCIS, "AFM Update: Chapter 22: Employment- 
based Petitions (AD03-Ol)," (September 12,2006)("Aytes memorandum") 
multinational organizations." Counsel asserts that the director's decision "makes no logical sense" in the 
context of "multinationalism, globalization and Congressional intent." 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that it maintains a 
qualifying relationship with the beneficiary's foreign employer. 
Although the AAO concurs with the director's ultimate conclusion in this matter, the AAO must address a 
critical and repeated misstatement of fact in the record that has been accepted by both the director and 
counsel. 
Despite the petitioner's statements and the director's findings to the contrary, there is no evidence that the 
foreign entity that employed the beneficiary, Servicios Ejecutivos a PriceSmart a S.A. de C.V., was dissolved 
or otherwise had ceased to exist as of the date the petition was filed. The petitioner indicates that PSMT 
Mexico closed its warehouse operations as of February 2005. However, the record shows that PSMT Mexico 
and its subsidiaries continued to exist as legal entities at the time the petition was filed. As of July 2007, 
PSMT Mexico, and indirectly, Servicios Ejecutivos a PriceSmart a S.A. de C.V., were still legally recognized 
subsidiaries of the U.S. petitioner. The record shows that the petitioner included financial results for PSMT 
and its subsidiaries in the notes to its consolidated financial statements in its annual report for the fiscal year 
ended on August 3 1,2007. 
Therefore, the director's finding that no qualifying relationship existed between the petitioner and the foreign 
entity as of the date of filing was incorrect. As of July 26, 2007, the petitioner and the beneficiary's foreign 
employer enjoyed a parent-subsidiary relationship, pursuant to the definition of "subsidiary" at 8 C.F.R. 5 
204.5(j)(2). The AAO notes that this qualifying relationship would have been sufficient to establish the 
eligibility for the requested classification, despite the ongoing closing of the Mexican company's operations, 
because the petitioner does continue to meet the definition of "multinational" set forth at 8 C.F.R. 9 
204.56)(2). 
However, the petitioner's 2007 annual report at page 52 indicates: "On October 3 1, 2007, Grupo Gigante S.A. 
de C.V. purchased all 164,046 shares held by [the petitioner] in PSMT Mexico for $2.0 million, thereby 
allowing Grupo Gigante S.A. de C.V. to assume 100% control and ownership of PSMT Mexico." Therefore, 
as of October 31, 2007, the petitioner and the beneficiary's foreign employer no longer have the requisite 
common ownership and control. It is this event, and not the closure of the Mexican company's shopping 
warehouse operations, which render the petitioner and beneficiary ineligible in this matter. 
The AAO recognizes that the petitioner continues to conduct business in two or more countries, one of which 
is the United States. However, the issue here is not whether the petitioner meets the definition of 
multinational under 8 C.F.R. 5 204.5(j)(2), but whether it maintained (at the time the petition was filed) and 
continues to maintain a qualifying relationship with the separate legal entity that employed the beneficiary 
abroad. The current regulations expressly state that the petitioner must establish the beneficiary's 
"prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or 
corporation or other legal entity" which employed the beneficiary abroad. 8 C.F.R. 5 204.5Cj)(3)(i)(C). The 
regulation's use of the word "is" prescribes that the relationship between the petitioner and the beneficiary's 
foreign employer must exist in the present, i.e., at the time of filing and continue to exist until such time as the 
beneficiary is granted an immigrant visa or adjusts status to that of a permanent resident of the United States. 
The petitioner's burden of establishing eligibility for the benefit sought is not discharged until the immigrant 
visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
In direct contradiction to the express language in the relevant regulatory provision, counsel's faulty reasoning 
focuses on the petitioner's circumstances prior to the filing of the Form 1-140, thereby suggesting that 
eligibility need not be present at the time of filing and ongoing so long as the petitioner established that it met 
the relevant regulatory provisions at some other time. This line of reasoning suggests that once a qualifying 
relationship is established as having existed, the petitioner can continue relying on that old qualifying 
relationship for a petition filed in the future, even if the relationship ceases to exist at the time of filing, or 
while the petition is pending adjudication, as is the case in the present matter. The AAO cannot, however, 
adopt counsel's interpretation. Precedent case law specifically instructs against such unsound logic by 
specifically requiring that each petitioner establish its eligibility at the time of filing. Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm. 1971). Federal regulations affirmatively require an alien to establish eligibility for 
an immigrant visa at the time an application for adjustment of status is filed or when the visa is issued by a 
United States consulate. 8 C.F.R. 9 245.1 (a), 22 C.F.R. § 42.4 1. 
Here, by the time the RFE was issued on February 22, 2008, the petitioner was no longer eligible for the 
immigration benefit it was seeking by virtue of the severing of the parent-subsidiary relationship between the 
petitioner and the beneficiary's foreign employer. It would be factually impossible for the petitioner to 
establish an ongoing qualifying relationship with a foreign entity that is now wholly-owned by a company 
that has no documented common ownership and control with the U.S. employer. Accordingly, as the 
petitioner did not have a qualifying relationship with the beneficiary's foreign employer as of October 3 1, 
2007, this petition cannot be approved. 
The AAO acknowledges counsel's claim that the Aytes memorandum and AFM provide that the petitioner 
only need establish that it is doing business in the United States and one other country at the time of filing the 
immigrant visa petition. This interpretation is incorrect. The Aytes memorandum at page 43 states: 
As described in 8 CFR 204.5(j)(3), the petitioner must demonstrate that the: 
U.S. organization and the organization abroad maintain a qualifying relationship; 
U.S. organization and the organization abroad are both actively engaged in doing 
business; and 
U.S. organization has been actively engaged in doing business for at least one year. 
The "qualifying relationship" requirement is separate from the "doing business" requirement and therefore 
requires USCIS to make independent factual determinations. Here, the petitioner meets the definition of 
"multinational" but no longer maintains a qualifying relationship with the foreign organization that employed 
the beneficiary. The Aytes memorandum further states at page 44: "When an employer wishes to transfer an 
alien employee working abroad to a U.S. company location as an El3 immigrant, a qualifying relationship 
must exist between the foreign employer and the U.S. employer." Neither the memorandum nor the AFM 
state that the qualifying relationship must have existed at some time in the past, nor do they contemplate the 
approval of a petition when there is no longer a qualifying relationship between the petitioner and the foreign 
entity. 
Although the regulations at 8 C.F.R. 5 204.56)(3)(i)(B) reference beneficiaries who are already employed by 
the petitioner as nonimmigrants, the fact that the beneficiary is currently in the United States in L-1A 
classification does not exempt the petitioner from its burden to establish the existence of an ongoing 
qualifying relationship with the beneficiary's previous foreign employer as of the date the petition is filed, and 
until the beneficiary's application for permanent residence is ultimately approved. Rather, the regulation at 8 
C.F.R. 5 204.5(j)(3)(i)(B) simply allows USCIS to look beyond the three-year period immediately preceding 
the filing of the 1-140 Petition in order to determine whether the beneficiary has the requisite one year of 
qualifying employment abroad. To construe the regulation as creating an exception that allows aliens to 
qualify as multinational managers without a qualifying relationship between the U.S. and foreign entity would 
contravene the plain language of the statute. 
In this case, the parent-subsidiary relationship between the petitioner and the beneficiary's foreign employer 
was severed when the petitioner sold its shares in PSTM Mexico to its joint venture partner in October 2007. 
The fact that the petitioner continues to be part of a multinational group is irrelevant in this proceeding, as this 
group does not include the foreign company that employed the beneficiary. The beneficiary's employment 
abroad with a subsidiary of PSTM Mexico can no longer be considered employment with a qualifying entity 
for the purposes of this immigrant visa classification, and it cannot be found that the beneficiary is seeking "to 
continue to render services to the same employer or to a subsidiary or affiliate thereof." 
As noted by the director, counsel's reliance on the beneficiary's continuous maintenance of L-1A status, and 
on the regulations governing L-1 nonimmigrant intracompany transferees at 8 C.F.R. 5 214.2(1) is not 
persuasive in the context of this immigrant visa petition. The AAO acknowledges that both the immigrant and 
nonimmigrant visa classifications rely on the same definitions of "subsidiary" and "affiliate." See 8 C.F.R. 
55 214.2(1)(l)(ii)(K) and (L); 8 C.F.R. 204.56)(2). However, there are situations in which changes in 
corporate relationships will render an L-1A nonimmigrant ineligible for classification as a multinational 
manager or executive pursuant to section 203(b)(l)(C), even when such changes do not affect the 
nonimmigrant alien's ability to maintain his or her L-1A status. 
The L-1 nonimmigrant classification only requires that the petitioning organization continue to operate 
outside the U.S. See 8 C.F.R. 5 214.2(l)(ii)(G)(2) (defining "qualifying organization" as a United States or 
foreign firm, corporation, or other legal entity which is or will be doing business in at least one other country 
for the duration of the alien's stay in the United States as an intracompany transferee.) While a qualifying 
relationship with the beneficiary's foreign employer must exist at the time of the beneficiary's transfer to the 
United States in L-1 status, a subsequent sale or dissolution of the foreign entity that employed the beneficiary 
will not necessarily render the beneficiary ineligible to maintain L-1 status, so long as the petitioner continues 
to do business in at least one other country through a qualifying branch, parent, affiliate or subsidiary. In such 
an instance, the regulations require the petitioner to file an amended 1-129 petition so that USCIS can 
determine whether the petitioner is still a qualifying organization. See 8 C.F.R. 5 214.2(1)(7)(i)(C). 
In contrast, in order to establish eligibility for classification as a multinational manager or executive for 
immigrant visa purposes, the petitioner must establish that it maintains a qualifying relationship with the 
beneficiary's foreign employer; the foreign corporation or other legal entity that employed the beneficiary 
must continue to exist and have a qualifying relationship with the petitioner at the time the immigrant petition 
is filed. 8 C.F.R. §204.56)(3)(i)(C). A multinational executive or manager is one 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." Section 203(b)(l)(C) of the Act, 8 U.S.C. 
9 1 153(b)(l)(C). 
Based on the foregoing discussion, the petitioner has not established that a qualifying relationship exists 
between the petitioner and the beneficiary's foreign employer. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the record as presently constituted does not demonstrate that the 
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity for one year, 
or that she will be employed by the United States entity in a primarily managerial capacity. The petitioner 
does not claim that the beneficiary has been or would be employed in an executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(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 
(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. 
With respect to the beneficiary's employment abroad, the petitioner indicates that the beneficiary was 
employed by the foreign entity for a total of sixteen months, from May 2002 until September 2003, during 
which time she held three different positions: import manager; distribution and logistics manager; and exports 
and logistics manager. The petitioner has provided a detailed position description for the exports and logistics 
manager position, and an organizational chart depicting this position within the foreign entity's organizational 
hierarchy. Upon review, the petitioner has demonstrated that the beneficiary's last position with the Mexican 
entity was in a primarily managerial capacity. However, the record does not contain detailed position 
descriptions or organizational charts for the beneficiary's prior positions, and the petitioner has not provided 
the beneficiary's dates of employment in each specific role. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Based on the organizational chart submitted for the foreign entity, it does not appear that the import manager 
position supervises subordinate personnel, nor can it be concluded based on the job title alone that the 
position manages an essential function. Furthermore, the position of "distribution and logistics manager," the 
second position the beneficiary held with the foreign entity, is not depicted on the foreign entity's 
organizational chart. Accordingly, the record does not demonstrate that the beneficiary has the requisite one 
year of employment in a managerial or executive capacity with the foreign entity. For this additional reason, 
the petition cannot be approved. 
Finally, the AAO finds insufficient evidence to establish that the beneficiary's proposed position in the United 
States will be in a primarily managerial or executive capacity. The petitioner submitted a letter dated July 19, 
2007 in which it stated that the beneficiary, as "Corporate Buyer and DC Consultant," will "oversee essential 
functions of the buying department of the Company and Mexico DC operations"; "manage the professional 
staff of four Assistant Buyers"; "have the authority to exercise wide discretion regarding policies and 
procedures"; hire and terminate personnel, and operate at a high level within the company, reporting to the 
Senior Vice President of buying. The petitioner submitted an organizational chart which depicts the 
beneficiary as "BuyerIMx Dc Consultant" for office supplies, lawn & garden and seasonal products, 
supervising four assistant buyers. She reports to the senior vice president of buying for non-foods, who 
reports to the executive vice president of buying. The chart shows that the beneficiary is one of five buyers in 
the non-foods buying department. 
The petitioner submitted a list of 13 duties performed by the beneficiary in this position, along with the 
percentage of time she devotes to each job duty. The petitioner also provided its standard job description for 
the position of "buyer," which lists seven "essential duties and responsibilities" performed by the position. 
Upon review, there are key differences between the descriptions which raise questions regarding the position's 
actual level of authority. For example, the official position description does not indicate that the position is 
responsible for hiring employees or recommending personnel actions, nor does the position indicate any 
supervisory duties, or policy-making authority. The buyer position does not require a college degree, which 
raises questions as to whether the lesser position of "assistant buyer" is actually a professional position as 
claimed by the petitioner. The buyer position requires five years of buying experience, the "ability to work 
with others in a team environment," the ability to "take direction and accomplish tasks with minimum 
supervision," math and computer skills, and negotiation skills, but no supervisory experience. 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 petitioner also modified several of the official duties of the position in an attempt to establish that the 
position is managerial in nature. For example, the petitioner indicates that the beneficiary's primary task, 
requiring 25 percent of her time, is "leading the negotiations at management level with vendors/suppliers 
regarding product costs, terms of sale, discounts, freight return allowances, etc." The official job description 
for the position of buyer states: "Negotiate with vendorlsupplier product costs, terms of sale, discounts, freight 
return allowances, etc." The petitioner states that the beneficiary is responsible for "overseeing, through 
subordinate personnel, the maintenance of proper and accurate item information in computer system." The 
official job description states that the buyer will "manage and maintain proper and accurate item information 
in computer system." The petitioner's insertion of the words "oversee" or "manage" does not automatically 
elevate the position to one which meets the definition of managerial capacity. The actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, although the petitioner stated that the official job description for the position of "buyer" 
summarizes the beneficiary's position, the petitioner indicated in its letter that the beneficiary devotes only 57 
percent of her time to performing the duties of a buyer, while she spends the remainder of her time 
"overseeing the Mexico DC Operations," managing the delivery of training to unidentified "in-country," 
logistics, and accounting personnel, and overseeing export shipping documentation. The petitioner has not 
identified with any specificity what the beneficiary does to "oversee" the distribution center operations, and 
the distribution center and its staff do not appear on any of the submitted organizational charts. The petitioner 
has not adequately outlined the actual duties the beneficiary performs as "DC Consultant" such that the AAO 
could conclude that such duties are primarily managerial or executive in nature. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 5 2 14.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 9 214.2(1)(1)(ii)(B)(3). 
Based on the unresolved discrepancies addressed above, the AAO is not persuaded that the beneficiary 
primarily supervises and controls a subordinate staff of professional, managerial or supervisory employees. 
The petitioner has not demonstrated that the beneficiary's position involves the authority to hire and fire 
subordinates, or any supervisory authority, nor has it established that her claimed subordinates are 
professionals.2 An employee will not be considered to be a supervisor simply because of a job title, because 
he or she is arbitrarily placed on an organizational chart in a position superior to another employee, or even 
because he or she supervises daily work activities and assignments. Rather, the employee must be shown to 
possess some significant degree of control or authority over the employment of subordinates. See generally 
Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (Cited in Hayes v. 
Laroy Thomas, Znc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11,2007)). 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed 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. 5 204.5(j)(5). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining the 
claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, the 
duties of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary fiom 
performing operational duties, the nature of the petitioner's business, and any other factors that will contribute to a 
complete understanding of a beneficiary's actual duties and role in a business. In the case of a function manager, 
where no subordinates are directly supervised, these other factors may include the beneficiary's position within 
the organizational hierarchy, the depth of the petitioner's organizational structure, the scope of the beneficiary's 
authority and its impact on the petitioner's operations, the indirect supervision of employees within the scope of 
the function managed, and the value of the budgets, products, or services that the beneficiary manages. 
The petitioner states that the beneficiary will "oversee essential functions of the Buying Department of the 
Company and the Mexico DC operations," but it has failed to demonstrate that the beneficiary's primary duties 
will be overseeing an essential function of the organization. The beneficiary appears to be the senior employee of 
In evaluating whether the beneficiary manages 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. 5 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 (Comm. 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 subordinate employee. The petitioner has not 
established that a bachelor's degree is a prerequisite for employment as an assistant buyer. 
the three workers responsible for buying office supplies, lawn and garden products and seasonal items for the 
petitioner's stores, but the record does not demonstrate that she or any other buyer functions at a senior level 
within the petitioner's organizational hierarchy. The job descriptions submitted, particularly the official job 
summary for the position, do not establish that the position's level of authority rises to the level of a function 
manager. 
For the foregoing reasons, the petitioner has not established that the beneficiary will be employed in the United 
States in a primarily managerial or executive capacity. For this additional reason, the petition will be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), afd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The AAO acknowledges that USCIS previously approved a petition requesting an extension of the 
beneficiary's L-1A status. It must be noted that many 1-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant 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. 1 103 (E.D.N.Y. 1989). Examining the consequences of an approved petition, there is a 
significant difference between a nonimmigrant L-IA visa classification, which allows an alien to enter the 
United States temporarily, and an immigrant E-13 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. $9 204 and 214 of the Act, 8 U.S.C. fjfj 1154 and 1184; see also fj 316 of the Act, 8 U.S.C. fj 1427. 
Because CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
at 29-30; see also 8 C.F.R. fj 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L- 1A petition's validity). 
It must be emphasized that that each petition filing is a separate proceeding with a separate record. See 8 
C.F.R. fj 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record of proceeding. See 8 C.F.R. fj 103.2(b)(16)(ii). Despite any number of 
previously approved petitions, CIS does not have any authority to confer an immigration benefit when the 
petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. Based on the 
lack of required evidence of eligibility in the current record, including a change in the qualifying corporate 
relationship while the petition was pending adjudication, the AAO finds that the director was justified in 
departing from the previous nonimmigrant petition approvals by denying the instant immigrant petition. 
Furthermore, 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 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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 AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043. 
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. Here, that burden has not been met. 
ORDER: The appeal is dismissed.