dismissed EB-1C Case: Retail

PTIFlf,fC COPY 
i$c?ntiiying data &?em! a0 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Seeurity 
U. S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: APR 0 6 2009 
LIN 07 259 56983 
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, as required by 8 C.F.R. 103.5(a)(l)(i). 
Jo o@@- 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, an Ohio corporation, alleges to operate a gasoline station and convenience store and to have a 
qualifying relationship with the beneficiary's claimed former employer in Kenya. 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. § 1153(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition concluding that the petitioner failed to establish (1) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity; or (2) that the beneficiary will be employed 
in the United States in a primarily managerial or executive capacity. 
On appeal, counsel disputes the director's findings and asserts that the beneficiary will perform, and has 
performed, primarily qualifying duties. 
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. 
LIN 07 259 56983 
Page 3 
Title 8 C.F.R. 5 204.56)(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 firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
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 first issue in this proceeding is whether the petitioner provided sufficient evidence to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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 
LIN 07 259 56983 
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 10 l(a)(44)(B) of the Act, 8 U.S.C. § 1 10 l(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. 
The petitioner does not clarifjr in the initial petition whether the beneficiary primarily performed managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary was employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that 
the petitioner is claiming that the beneficiary was employed in either a managerial or an executive capacity 
and will consider both classifications. 
In this matter, the petitioner failed to submit any evidence pertaining to the beneficiary's foreign employment. 
Counsel described the beneficiary in a letter dated December 11, 2006 as having served as "the senior 
executive" of the foreign employer, "which has always conducted business in building hardware and 
materials." The petitioner vaguely describes the beneficiary's foreign duties in a letter dated October 2, 2006 
as establishing goals and policies, negotiating contracts, liaising with suppliers, contractors, and customers, 
having personnel responsibilities, and supervising transactions. Although counsel also attempts to incorporate 
by reference "previous L-1A Approvals" as evidence of the beneficiary performing qualifying duties abroad, 
the petitioner did not describe the beneficiary's foreign duties or the staffing or organization of the foreign 
employer. It is noted that 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. Prior nonimmigrant 
approvals do not preclude U.S. Citizenship and Immigration Services (USCIS) from denying an extension 
petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
LIN 07 259 56983 
Page 5 
Accordingly, on February 13, 2008, the director requested additional evidence. The director requested, inter 
alia, a detailed job description for the beneficiary's position abroad, including a breakdown of the amount of 
time devoted to each ascribed duty; job descriptions for all subordinate employees; and an organizational 
chart showing the beneficiary's position in relation to other employees of the enterprise. 
In response, the petitioner failed to submit any evidence further describing the beneficiary's duties abroad, the 
duties of his subordinates, if any, or the organization of the foreign employer. 
On March 24, 2008, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
On appeal, counsel does not specifically address the director's determination that the petitioner failed to 
establish that the beneficiary performed qualifying duties abroad. 
Upon review, the AAO concurs with the director's decision that the petitioner failed to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. 3 204.5Cj)(5). The actual duties themselves reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 
41 (2d. Cir. 1990). 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
acted 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 describe what the beneficiary did abroad on a day-to- 
day basis, even though this evidence was specifically requested by the director. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 3 
103.2(b)(14). 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 
actually performed managerial or executive duties. 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. 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 primarily performed qualifying 
duties while employed abroad. Not only are the beneficiary's duties so vaguely described that it cannot be 
discerned whether the beneficiary performed any qualifying managerial or executive duties, the record also 
does not establish that the beneficiary was relieved of the need to perform non-qualifying tasks inherent to his 
vaguely described duties by a subordinate staff. The petitioner failed to identify any subordinate staff 
members abroad, if any, or to describe any of their duties, even though this evidence was requested by the 
director. The petitioner also did not submit an organizational chart for the foreign employer. Once again, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
Page 6 
burden of proof in these proceedings. Id. Failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). Absent descriptions of the 
foreign employer's organization and subordinate personnel, it cannot be concluded that it is more likely than 
not that the beneficiary primarily performed qualifying duties abroad. Accordingly, it appears more likely 
than not that the beneficiary primarily performed non-qualifying administrative or operational tasks in his 
employment abroad. An employee who "primarily" performed the tasks necessary to produce a product or to 
provide services is not considered to have been "primarily" employed in a managerial or executive capacity. 
See sections IOl(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 
(Comm. 1988). 
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
noted above, the record is devoid of evidence identifying the beneficiary's subordinates abroad, if any. 
Although the petitioner implies that the beneficiary was a "manager" or "executive" abroad, the petitioner 
does not establish that the beneficiary actually "supervised" or "controlled" any subordinate workers. 
Furthermore, as the petitioner failed to describe the duties of any of these subordinate workers, if any, the 
petitioner has failed to establish that these workers, if any, were truly supervisory, managerial, or professional 
in nature. 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. Therefore, even if the foreign entity employed subordinate workers, it appears that the 
beneficiary was, at most, a first-line supervisor of non-professional 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. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. Finally, as the petitioner failed to establish the skills and 
education required to perform the duties of the subordinate positions, the petitioner has not established that 
the beneficiary managed professional employees.' Accordingly, the petitioner has not established that the 
beneficiary was employed abroad primarily in a managerial capacity.2 
--- 
I 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions required 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). 
2~hile the petitioner has not argued that the beneficiary managed an essential hnction 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 
LIN 07 259 56983 
Page 7 
Similarly, the petitioner has failed to establish that the beneficiary acted 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 10 1 (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 acted primarily in an executive capacity. As explained above, the beneficiary's 
job description is so vague that it cannot be discerned what, exactly, he did on a day-to-day basis. Therefore, 
the petitioner has not established that the beneficiary was employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performed managerial or 
executive duties, and the petition may not be approved for that reason. 
The second issue in this proceeding is whether the petitioner provided sufficient evidence to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
The petitioner claims in the Form 1-140 to employ 3 people and vaguely describes the beneficiary's proposed 
duties in a letter dated October 2, 2006 as establishing goals and policies, negotiating contracts, liaising with 
suppliers, contractors, and customers, having personnel responsibilities, and supervising transactions. 
Counsel further describes the beneficiary's proposed duties as the operator of a convenience storelgas station, 
and of a separate store called One Stop Party Shop, in a letter dated December 1 1,2006 as follows: 
- 
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 managed an essential function, the petitioner must furnish a written job 
offer that clearly describes the duties 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 8 C.F.R. $ 204.5Cj)(2) and (5). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
managed the function rather than performed the tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties were primarily managerial. Absent a clear and 
credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine 
what proportion of his duties were managerial, nor can it deduce whether the beneficiary was primarily 
performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
LIN 07 259 56983 
Page 8 
Formulate corporate direction, long and short-term goals, objectives and policies: 5 
hours per week. 
Review and direct the financial position of the company. This includes budgeting, 
money management, monitor inventory, payroll and purchasing supervision, as well 
as record keeping and asset maintenance: 5 hours per week. 
Develop business contacts, establish professional relationship: 10 hours per week. 
Plan and supervise marketing, sales and promotional activities: 10 hours per week. 
Explore new growth opportunities and liaise with other contacts. 10 hours per week. 
Counsel also describes the beneficiary as choosing business locations, selecting merchandise, administering 
inventory and store appearance, and preventing people from shoplifting. 
The petitioner also submitted organizational charts for the United States operation. For the convenience 
storelgas station, the beneficiary is portrayed as supervising an accounts1operations employee and a clerical 
employee. For the One Stop Party Shop, beneficiary is portrayed as supervising a vice president, an accounts 
manager, and a clerk. It is noted that the party store appears to be operated by a separate corporation, Yogi 
Sales Ohio, Inc., which is not a party to the instant petition. Nevertheless, as the beneficiary is purportedly a 
principal owner of Yogi Sales Ohio, Inc. as well as the petitioner, it is claimed that he performs duties for 
each business. 
The petitioner did not specifically describe the duties of any of the beneficiary's subordinate workers. The 
petitioner also did not submit any current evidence addressing the number of workers employed by either 
business organization. 
On February 13, 2008, the director requested additional evidence. 
 The director requested, inter alia, a 
detailed job description for the beneficiary's position in the United States, including a breakdown of the 
amount of time devoted to each ascribed duty; job descriptions for all subordinate employees; and an 
organizational chart showing the beneficiary's position in relation to other employees of the enterprise. 
In response, the petitioner submitted an organizational chart showing the beneficiary supervising a single 
sales clerk. The petitioner also submitted an organizational chart for the One Stop Party Shop, which is 
operated by a separate corporation, showing the beneficiary supervising directly or indirectly five subordinate 
workers. Once again, the petitioner failed to describe the duties of any of the subordinate positions. The 
record is also devoid of payroll evidence establishing that any of these subordinate workers was employed at 
the time the petition was filed in July 2007. 
The petitioner further described the beneficiary's duties in an undated letter as follows: 
Visit sites, monitor and review overall and financial performance of existing 
companies, including weekly business reports of income, expenditures, employees 
and salaries, inventory: 10- 15 hours per week. 
LIN 07 259 56983 
Page 9 
Develop business contacts and establish professional relationships (leading to the 
purchase of new business expansion and additional purchase of property, as well as 
continuing ongoing negotiation): 20 hours per week. 
Plan, develop and execute sales and marketing activities including investigating and 
confirming venues for advertising campaigns, mailers, public events, website 
promotional activities for the new Days Inn, sponsorship and the like: 10 hours per 
week. 
Finally, as noted in the above job description, the petitioner claims that the beneficiary is performing duties 
associated with the operation of a Days Inn motel. However, this component of the enterprise was not 
identified in the initial petition, and it appears that it commenced after the filing of the instant petition. 
On March 24, 2008, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. 
On appeal, counsel argues that the beneficiary will perform qualifying duties in the United States. 
Upon review, counsel's assertions are not persuasive. 
As explained above, in examining the executive or managerial capacity of the beneficiary, USCIS will look 
first to the petitioner's description of the job duties. See 8 C.F.R. 8 204.5G)(5). The actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. At 1108, affd, 905 F.2d 
41. 
As a threshold matter, the petitioner's attempt to expand the beneficiary's job duties in response to the Request 
for Evidence to include duties related to a Day's Inn motel was inappropriate and will not be considered by 
the AAO. It appears that the Day's Inn business commenced after the filing of the instant petition. 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). Furthermore, the purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 5 103.2(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. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248,249 (Reg. Comm. 1978). If significant changes are made to the initial request for approval, the 
petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in 
the record. 
In view of the above, the petitioner's description of the beneficiary's job duties fails to establish that the 
beneficiary will primarily act in a "managerial" or "executive" capacity. Once again, 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 in his administration of the enterprise. For example, the petitioner states that the 
Page 10 
beneficiary will formulate goals, objectives, and policies; establish professional relationships; develop 
business contacts; supervise marketing, sales, and promotional activities; and review performance of 
businesses. However, the petitioner does not specifically define these goals, objectives, policies, or 
relationships, or explain what, exactly, the beneficiary will do to "supervise" marketing, sales, and 
promotional activities or "review" business performance other than act as a first-line supervisor of non- 
professional subordinate retail workers. 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 are 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. At 1108, affd, 905 F.2d 41. 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. 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
managerial or executive duties in the United States. Absent evidence to the contrary, the petitioner has failed 
to establish that any of the ascribed duties, e.g., planning, developing, and executing sales and marketing 
activities, are bona fide managerial or executive duties. To the contrary, it appears more likely than not that 
the beneficiary will primarily perform non-qualifying administrative, operational, and first-line supervisory 
tasks in his administration of the enterprise. Moreover, the record does not establish that the beneficiary will 
be relieved of the need to perform the non-qualifying tasks inherent to his vaguely described duties by a 
subordinate staff. The petitioner failed to describe the duties of the claimed subordinate workers, even though 
this evidence was requested by the director. Once again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Id. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 5 103.2(b)(14). Absent descriptions of the claimed subordinate personnel, it cannot be concluded 
that it is more likely than not that the beneficiary will "primarily" perform qualifying duties in the United 
States. Once again, 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 lOl(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. 
at 604. 
Likewise, 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 noted above, although the petitioner claims that the beneficiary will directly and indirectly 
supervise several subordinate workers, the petitioner failed to specifically describe the job duties of these 
employees. Therefore, as it cannot be discerned whether any of these workers will be a supervisory, 
managerial, or professional worker, it appears that the beneficiary will be, at most, a first-line supervisor of 
non-professional workers. Once again, 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. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 
I&N Dec. at 604. 
LIN 07 259 56983 
Page 11 
Accordingly, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity.3 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. As 
explained above, it appears more likely than not that the beneficiary will primarily perform the tasks 
necessary to produce a product or to provide a service and will act as a first-line supervisor of non- 
professional retail 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 USCIS "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. Suva, 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 USCIS 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. 200 1). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties in the United States, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that it "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." 8 C.F.R. 5 204.5Cj)(3)(C). 
A "subsidiary" is defined at 8 C.F.R. 5 204.5Cj)(2) as: 
[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. 
Likewise, an "affiliate" is defined in pertinent part at 8 C.F.R. $204.5(j)(2) as: 
3~hile counsel does not argue that the beneficiary will manage an essential function of the organization, the 
record would not support this position even if taken. As explained above, the record indicates that the 
beneficiary will more likely than not primarily perform non-qualifying tasks and serve as a first-line 
supervisor. As the beneficiary will more likely than not primarily perform non-qualifling, first-line 
supervisory tasks in his administration of the operation, it cannot be concluded that he will manage an 
essential function. See generally IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d at 24. 
Page 12 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; [or] 
(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[.] 
The regulations and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 
593. In the context of this petition, ownership refers to the direct or indirect legal right of possession of the 
assets of an entity with full power and authority to control; control means the direct or indirect legal right and 
authority to direct the establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N at 595. 
In this matter, the petitioner claims in a letter dated October 2,2006 that both it and the foreign entity are 90% 
owned by the beneficiary. The petitioner also claims that the petitioner owns a 51% interest in another 
corporation, which operates the One Stop Party Shop. In support, counsel submits a variety of organizational 
documents from Kenya and the United States. However, upon review, the record contains several 
inconsistencies which undermine the petitioner's claim that it, the One Stop Party Shop, and the foreign 
employer share ownership and control. First, the petitioner submitted its tax returns, and the tax returns for 
Yogi Sales (Ohio), Inc. d/b/a One Stop Party Shop, from 2004, 2005, 2006, and 2007, which all indicate in 
their respective schedules K that no one individual owned 50% or more of either corporation's voting stock. 
This averment, which was made four years in a row for both entities, directly contradicts the petitioner's claim 
to be majority owned by the beneficiary and its claim that Yogi Sales (Ohio), Inc. is majority owned by the 
petitioner. The petitioner offers no explanation for this inconsistency in the record. Second, although the 
petitioner claims that the foreign employer is 90% owned by the beneficiary, the foreign entity's 
Memorandum of Association indicates that the beneficiary is a minority owner (4 out of 10 shares). Absent 
supporting evidence corroborating the foreign entity's accountant's claim that the beneficiary is now a 90% 
owner, the accountant's 2003 letter is not alone persuasive in establishing that the beneficiary owns and 
controls the foreign entity. 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. Furthermore, counsel's assertion in his letter dated March 10, 2008 that no 
further evidence exists to establish the ownership and control of the foreign entity is not persuasive. The non- 
existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
5 1 03.2(b)(2)(i). 
Accordingly, as the record is not persuasive in establishing that the petitioner "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," the petition may not be approved for this additional reason. 
LlN U/ L5Y 3bYW 
Page 13 
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 
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, afS 345 F.3d 
683. 
As a final note, USCIS 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 USCIS than nonimmigrant petitions. The AAO acknowledges that 
both the immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and 
executive capacity. See $5 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 10 1 (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: $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also tj 3 16 of the 
Act, 8 U.S.C. tj 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 USCIS 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 USCIS 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 USCIS 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 USCIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482. The approval of a nonimmigrant petition in no way guarantees that USClS 
will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 
immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. 
Lta'. v. Sava, 724 F. Supp. at 1103. 
LIN 07 259 56983 
Page 14 
Furthermore, if the previous nonimmigrant petition were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd, v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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 nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.