dismissed EB-1C Case: Retail Management

identiqing data deleted to 
prevent cleprly unwamntd 
hvdorrn* 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Office: TEXAS SERVICE CENTER Date: '#@@Sam 
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 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
 The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was ultimately 
dismissed. The matter is now before the AAO on motion to reopen and reconsider. The petitioner's motion to 
reopen will be dismissed due to the petitioner's failure to meet the requirements of 8 C.F.R. $ 103.5(a)(2).' 
The motion to reconsider will be granted and counsel's arguments will be considered in a full discussion 
below. However, the underlying decision dismissing the appeal will be affirmed. 
The petitioner is a Texas corporation engaged in the operation of a gas and convenience store and a 
laundromat. It seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 153(b)(l)(C), as a multinational executive or 
manager. 
On August 8, 2005, the director denied the petition. His decision was based on two grounds of ineligibility: 
1) the petitioner failed to establish that it would employ the beneficiary in a qualifying managerial or 
executive capacity; and 2) the petitioner failed to establish its ability to pay the beneficiary's proffered wage. 
In the dismissal of the appeal, the AAO affirmed the director's grounds for denial and added another ground 
that had not been cited by the director. The AAO concluded that the petitioner failed to provide sufficient 
information to establish that the beneficiary was employed abroad in a managerial or executive capacity. 
On motion, counsel submits a brief addressing all three of the issues cited by the AAO. 
Section 203(b) of the Act states in pertinent part: 
(1) Pnority 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. 
I 
 The regulations at 8 C.F.R. 5 103.5(a)(2) state, in pertinent part, that a motion to reopen must state the new facts to be 
provided in the reopened proceeding and be supported by affidavits or other documentary evidence. The petitioner in the 
present matter does not present new facts supported by the required documentation. Therefore, reopening the matter on 
motion is not warranted. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that, entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first two issues in this proceeding require a discussion of the beneficiary's prospective duties as well as 
those he performed during his employment abroad. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. 5 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 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
Page 4 
(iii) 
 exercises wide latitude in discretionary decision-mahng; and 
(iv) 
 receives only general supervision or direction fi-om higher level executives, 
the board of directors, or stockholders of the organization. 
In its dismissal of the petitioner's appeal, the AAO cited the documentation submitted by the petitioner with 
regard to the beneficiary's proposed duties in the United States and concluded that the petitioner failed to 
provide a detailed description disclosing the actual duties to be performed by the beneficiary in his proposed 
position and did not provide sufficient evidence documenting whom it employed at the time the petition was 
filed. 
The AAO also determined, beyond the director's decision, that the petitioner failed to provide an adequate 
description of the beneficiary's previously performed duties. The AAO noted that the petitioner's description 
of the beneficiary's employment abroad was the same vague and insufficient outline of job responsibilities as 
the one submitted to describe the beneficiary's proposed position in the United States. The AAO also noted 
that the petitioner failed to provide documentation indicating who was performing the foreign entity's non- 
qualifling operational tasks. 
On motion, counsel contends that the AAO's analysis lacks any consideration for the petitioner's claimed 
financial growth. Counsel further distinguishes the petitioner in the instant matter from the petitioner in the 
case cited in the AAO's prior decision, claiming that Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 1989), afld, 905 F.2d 41 (2d. Cir. 1990), "is premised on the absence of subordinates." Counsel's 
arguments, however, lack merit. With regard to the first assertion, there is no statute, regulation, or case law 
precedent that suggests a petitioner's financial growth is an accurate indicator of whether a beneficiary 
primarily performs or will perform duties of a qualifying nature in the future. Moreover, a petitioner must 
establish eligbility 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 (Cornrn. 
1971). Thus, as stated in the AAO's prior decision, 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. 
9 204.5(j)(5). The importance of a detailed description of the beneficiary's proposed job duties is reaffirmed 
in the New York district court case of Fedin Bros. Co., Ltd. v. Sava. 724 F. Supp. 1103. As such, counsel's 
second assertion regarding the AAO's reference to the precedent case is unfounded and ignores a significant 
portion of the court's finding. Id. 
Additionally, counsel states that the Fedin Bros. case does not apply to the fact pattern in the instant matter 
because unlike the petitioner in the cited case, the petitioner here does not lack a subordinate staff to perform 
the necessary operational tasks. However, the AAO has already concluded that the petitioner failed to submit 
adequate documentation to establish who was actually employed at the time of the filing of the Form 1-140. 
Counsel's unsupported assertions to the contrary are insufficient to overcome the AAO's detailed analysis, 
which is premised on the petitioner's own submissions. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). 
Counsel goes on to dissect the AAO's discussion of a function manager versus a personnel manager, 
suggesting that the AAO erred in its implication that the two types of management are mutually exclusive. 
However, counsel's criticism overlooks the key element in establishing whether the beneficiary would be 
Page 5 
employed in a managerial capacity. Regardless of whether the beneficiary would oversee a subordinate staff 
or an essential function, the petitioner must submit a detailed description of the beneficiary's proposed job 
duties. In the instant matter, the AAO has determined that the petitioner did not provide such a description 
and specifically pointed to the deficiencies in the description that was submitted. Instead of assisting the 
petitioner by supplementing the record with a more detailed description, counsel places undue focus on his 
interpretation of the AAO's statements regarding the term function manager. Contrary to counsel's 
assessment, the AAO did not state that a function manager cannot manage employees; rather, the AAO 
properly notes that 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. 9 1 10 1 (a)(44)(A)(ii). 
The term "function manager" was designed to accommodate a different type of manager--one that does not 
necessarily supervise the employees, but rather monitors the various aspects of the function as it is performed 
by others and relies on these individuals to actually perform the duties necessary to cany out the essential 
function managed. Accordingly, the AAO properly stated that personnel management is generally not 
common in the role of a function manager. This is not to say that there are no exceptions to this generality. 
However, counsel's argument is primarily theoretical and is not accompanied by a detailed job description 
explaining how the beneficiary's specific job duties fit the statutory definition of managerial or executive 
capacity. See id. In determining the beneficiary's employment capacity, the ultimate goal is to determine that 
the beneficiary's duties are primarily of a qualifying nature, not to determine that the beneficiary is a 
personnel manager, a function manager, or a combination of the two. 
Counsel also notes that a company in its early stages of development may not have a "formative" support staff 
and asserts that Citizenship and Immigration Services (CIS) should not deem the petitioner ineligible based 
on the size of its staff. However, there is no evidence on record that the AAO's determination was based on 
so basic an analysis. Rather, the record clearly shows that the size of the petitioner's support staff was only 
one of the factors considered. The petitioner's failure to provide a detailed job description weighed heavily on 
the AAO's ultimate conclusion. 
Moreover, even in the presence of an adequate job description that includes qualifying tasks, the AAO can 
and should consider a petitioner's overall personnel structure in order to determine whether a petitioner is 
adequately staffed to permit a beneficiary to primarily perform these qualifying tasks. In the instant matter, 
the AAO examined the beneficiary's job description and the petitioner's personnel structure in light of the 
reasonable needs of the organization and determined that the information and evidence provided was 
insufficient to establish that the beneficiary would primarily perform duties of a qualifying nature. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
With regard to the additional issue of the beneficiary's employment abroad, counsel raises the same arguments 
as discussed above and further asserts that the AAO made errors in its factual analysis. It is unclear exactly 
which part of the AAO's factual analysis counsel found erroneous. While the AAO understands counsel's 
obvious preference for the favorable findings of the service center with regard to the petitioner's previously 
filed L-1A petitions over the adverse findings of the AAO with regard to the present 1-140 petition, his 
assertion that the service center's analysis was more accurate is simply not supported by the record in the 
present matter. As stated in the AAO's prior decision, each nonimrnigrant and immigrant petition is a 
separate record of proceeding with a separate burden of proof; each petition must stand on its own individual 
Page 6 
merits. 
 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). While the AAO is generally hesitant to 
speculate on the service center's analysis when issuing approvals of nonimmigrant petitions, the AAO deems 
the record in the instant matter as one lacking in sufficient evidence to warrant approval. Consequently, if the 
petitioner's records of prior nonimmigrant proceedings resembled the record in the instant matter, the prior 
approvals should be deemed erroneous and each matter should be reviewed for possible revocation. 
Counsel also suggests that a discussion of issues that were not previously addressed by the director is 
indicative of the AAO second guessing the director's underlying decision. However, case law precedent has 
established that the AAO's de novo review on appeal can include issues that were not previously discussed by 
the director. 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 initiaI 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 
345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the 
AAO reviews appeals on a de novo basis). Whether the director's exclusion of the additional issue was the 
result of careful analysis or mere oversight is irrelevant, as the AAO's authority over the service centers is 
comparable to the relationship between a court of appeals and a district court. The AAO is not bound to 
follow the erroneous or incomplete decision of a service center. Louisiana Philharmonic Orchestra v. INS, 
2000 WL 282785 (E.D. La.), agd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
As properly and thoroughly addressed in the AAO's prior decision, the petitioner has failed to provide 
sufficient evidence to support the claim that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. Nor has counsel adequately addressed the lack of a detailed 
description of the beneficiary's duties abroad. Although counsel refers to a prior decision of the AAO in 
support of his assertions, the decision is unpublished and, therefore, does not serve as binding precedent on 
CIS employees in the administration of the Act. See 8 C.F.R. $ 103.3(c). As such, the AAO will affirm its 
prior conclusion regarding the petitioner's failure to establish that the beneficiary was employed abroad and 
would be employed in the United States in a qualifying managerial or executive capacity. 
The remaining issue in this proceeding is whether the petitioner has overcome the AAO's prior conclusion 
with regard to the ability to pay the beneficiary's proffered wage. 
The regulation at 8 C.F.R. $ 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
On motion, counsel cites Matter of Sonegawa, in which the Regional Commissioner considered an immigrant 
visa petition which had been filed by a small "custom dress and boutique shop" on behalf of a clothes designer. 
12 I&N Dec. 612 (Reg. Comm. 1967). The district director denied the petition after determining that the 
beneficiary's annual wage of $6,240 was considerably in excess of the employer's net profit of $280 for the year 
of filing. On appeal, the Regional Commissioner considered an array of factors beyond the petitioner's simple net 
profit, including news articles, financial data, the petitioner's reputation and clientele, the number of employees, 
future business plans, and explanations of the petitioner's temporary financial difficulties. Despite the petitioner's 
obviously inadequate net income, the Regional Commissioner looked beyond the petitioner's uncharacteristic 
business loss and found that the petitioner's expectations of continued business growth and increasing profits were 
reasonable. Id. at 615. Based on an evaluation of the totality of the petitioner's circumstances, the Regional 
Commissioner determined that the petitioner had established the ability to pay the beneficiary the stipulated 
wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial ability 
that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as the number 
of years that the petitioner has been doing business, the established historical growth of the petitioner's business, 
the overall number of employees, the occurrence of any uncharacteristic business expendtures or losses, the 
petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an 
outsourced service, or any other evidence that CIS deems to be relevant to the petitioner's ability to pay the 
proffered wage. 
In the instant matter, counsel urges the AAO to consider the petitioner's financial growth in order to determine 
its ability to pay. However, many of the relevant facts in Matter of Sonegawa are significantly different from 
those in the instant matter. More specifically, the petitioner in Matter of Sonegawa had been doing business for 
eleven years. See 12 I&N Dec. 612. It also had a business reputation, clientele, and a history of paying wages, 
which could be used to estimate future earnings and the ability to pay the proffered wage. Id. In the instant 
matter, while the petitioner may have been incorporated in March of 2001, the earliest sign of the petitioner doing 
business is 2004 invoices, the earliest of which dates back to June of 2004, less than one year prior to the filing of 
the petition.2 More importantly, none of the petitioner's financial documents establish a prior ability to pay the 
beneficiary's proffered wage. As the petitioner does not have an established history of its ability to pay the 
proffered wage, its future ability to pay remains uncertain at best. 
Furthermore, as stated in the AAO's prior decision, the 2004 CIS memorandum previously referenced by 
counsel provides for CIS'S use of discretion in assessing which documents, aside from those explicitly cited in 
8 C.F.R. 204.5(g)(2), to consider in determining the petitioner's ability to pay. Memorandum from William 
R. Yates, Association Director for Operations, Determination of Ability to Pay under 8 C.F.R. $204.5(@(2), 
HQOPRD 90116.45 (May 4,2004). There is no evidence that the AAO abused that discretionary authority in 
making its prior determination with regard to the petitioner's appeal. Accordingly, the AAO concludes that the 
petitioner has failed to overcome the prior determination with regard to its ability to pay. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if helshe shows that the AA0 abused its discretion with respect to all of the enumerated grounds. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
2 
 8 C.F.R. $ 204.56)(3)(i)(D) states that the petitioner must establish that it has been doing business for at least one year 
prior to filing the Form 1-140. The regulation at 8 C.F.R. § 204.56)(2) states that doing business means "the regular, 
systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include 
the mere presence of an agent or office." Based on the petitioner's date of filing the Form 1-140, the petitioner must 
establish that it had been doing business as of February 2004. 
Accordingly, the 
 will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: 
 The AAO affirms its prior decision. The appeal is dismissed.