dismissed EB-1C Case: Retail Trade And Investments

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
iwwng data &l&ed to 
 U. S. Citizenship 
pnvent clearly unwarranted and Immigration 
invasioa of ptzsma1 ~ivacy 
PlTBLIC COPY 
Office: TEXAS SERVICE CENTER Date: OCT 1 2 2006 
SRC 05 014 51210 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 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. 
r&k- 
%Robert P. iemann, Chief 
I Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas 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 filed the instant immigrant visa petition to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
$ 1153(b)(l)(C) of the Act. The petitioner is a corporation organized under the laws of the State of Texas that 
is engaged in the business of retail trade and investments. The petitioner seeks to employ the beneficiary as 
its director. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner contends that the director erred in his "assessment of executive 
capacity," and his finding that the beneficiary would not be employed in a primarily qualifying capacity. 
Counsel claims that the director incorrectly relied on the amount of wages paid by the petitioner, and did not 
consider its reasonable needs or whether the beneficiary would be employed as a "function manager." 
Counsel submits a brief and documentary evidence 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 or 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. 
I 
 The director initially concluded that the instant appeal was untimely filed and treated it as a motion pursuant 
to the regulation at 8 C.F.R. 5 103.3(a)(2)(v)(B)(2). In a February 1, 2006 decision, the director dismissed the 
motion concluding that the petitioner had not submitted evidence to overcome the previous finding of 
ineligibility. The petitioner's counsel subsequently filed a motion to reopen and reconsider, which the director 
granted, and ultimately reopened and forwarded the original appeal to the AAO for review, resulting in the 
instant decision. 
Page 3 
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 issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. @ 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 withn the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level withn 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 110l(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-malung; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
Page 4 
The petitioner submitted the instant immigrant visa petition on October 20, 2004, noting the beneficiary's 
proposed employment as the director of its six-employee company2. In an attached letter, dated October 15, 
2004, the petitioner outlined the job responsibilities held by the beneficiary in the position of director. As the 
petitioner repeated these responsibilities in its response to the director's request for evidence and provided the 
amount of time devoted by the beneficiary to each, they will be outlined below. The petitioner submitted an 
organizational chart identifying the beneficiary as supervising two retail clothing kiosks, which were run by a 
manager and two salespersons, as well as managing a subsidiary of the petitioner that was doing business as a 
gasoline station and convenience store. While the petitioner submitted with its initial filing copies of its state 
quarterly reports, none apply to the period during which the instant petition was filed. 
The director issued a request for evidence on April 27, 2005, asking that the petitioner submit a statement 
addressing the following: (1) the beneficiary's position title; (2) a list of the job duties performed by the 
beneficiary; (3) the percentage of time the beneficiary would spend performing each job duty; (4) the 
qualifications required to perform in the beneficiary's position; (5) the level of authority held by the 
beneficiary; and (6) the job titles, job duties, and educational levels of the beneficiary's subordinate managers, 
supervisors, and employees. The director asked that the petitioner also submit an organizational chart 
depicting the beneficiary's position in the corporation, and explain whether he functions at a senior level. 
Counsel for the petitioner responded in a letter dated July 12, 2005, stating that the beneficiary's employment 
in an executive capacity "is corroborated not only by the staffing that allows him to focus on executive 
directing but more importantly by the nature of the duties he has performed." Counsel explained that in the 
position of director, the beneficiary has focused on "executive networking," determining "marketing climates, 
and developing high level goals and guidelines for the U.S and foreign organizations." Counsel provided 
instances in which, he claimed, the beneficiary exerted his executive authority, such as purchasing a gasoline 
and convenience store and developing a cell phone store as an additional business in the gasoline and 
convenience market. Counsel explained that the lower-level personnel, which counsel stated was comprised 
of eight workers, including the beneficiary, would "execute the ministerial tasks of the business operation," 
while the beneficiary would direct the day-to-day activity of the subordinate staff. To corroborate the claim 
that the beneficiary would be employed in a primarily executive capacity, counsel referenced the following 
statement outlining the beneficiary's job duties: 
In consultation with the management and the Indian company develops long-range goals 
and objectives of the company, and with particular emphasis on the import/export 
function potential opened up by [General Agreement on Tariff and Trade (GATT)]; 
(25%) 
Directs and coordinates activities of the organization and formulates and administers 
subsidiary's investment policies (20%) 
Directs and coordinates activities relating to corporate planning, general administration, 
marketing-sales, and purchasing, activities for the subsidiary; (20%) 
Directs and coordinates activities of managers and employees in the production, 
operations, purchasing and marketing departments for which responsibility is delegated 
for further attainment of goals and objectives; (15%) 
' The record demonstrates that the petitioner in fact employed four workers at the time of filing; the remaining 
two workers were employed by a subsidiary of the petitioner. 
Page 5 
Reviews and analyzes activities, costs, operations, and forecast[s] data to determine 
progress toward stated goals and objectives (10%); 
Reviews with management and employees company's achievements and discusses 
required changes in goals or objectives of the company (10%); 
(Emphasis in original) 
An attached organizational chart identified the beneficiary's position as director-chief executive officer and 
the following subordinate positions: manager of exports and imports, two store managers (one who would 
manage the petitioner's two clothing kiosks and one who would manage the gasoline and convenience store 
owned by the petitioner's subsidiary), two salespersons working in retail clothing kiosks, and a salesperson 
working in the gasoline and convenience store. The AAO notes that the petitioner's state quarterly report for 
the period ending September 2004, one month prior to this filing, identifies four workers, the beneficiary, the 
clothing manager and two salespersons. Based on the amount of quarterly and annual wages paid to the 
manager and salespersons, none were employed by the petitioner on a full-time basis. Similarly, the 
accompanying quarterly report for the petitioner's corporate subsidiary demonstrates that neither the store 
manager nor salesperson was employed as a full-time worker. The petitioner submitted a statement of the job 
duties performed by each worker. 
In an August 1, 2005 decision, the director concluded that the petitioner had not demonstrated that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director outlined the statutory criteria for "managerial capacity" and "executive capacity," and stated that 
while the beneficiary is "exercis[ing] discretion over the day-to-day operations of the activity, [ ] it must be 
noted that he is also performing some of the day-to-day duties of the business." The director reviewed the 
wages paid to the petitioner's employees, noting that, other than the beneficiary, none are full-time employees. 
The director concluded that the petitioner "does not need a full[-]time executive to manage part[-]time 
employees and to make decisions regarding the company." The director further stated that the petitioner had 
not established "that the beneficiary's primary assignment has been or will be directing the management of the 
organization nor that the beneficiary has been or will be primarily directing or supervising a subordinate staff 
of professional, managerial, or supervisory personnel, who relieve him from performing non-qualifying 
duties." Consequently, the director denied the petition. 
Counsel for the petitioner filed a timely appeal on September 6,2005. In an appended appellate brief, counsel 
contends that as the director-chief executive officer of the petitioning organization, the beneficiary would be 
employed in a primarily executive capacity. Counsel challenges the director's findings, stating that her denial 
was based solely on an analysis of the wages paid by the petitioner to its employees and "a low employee 
count.'' Counsel stresses the statutory requirement imposed on Citizenship and Immigration Services (CIS) to 
consider the reasonable needs of the petitioning entity in conjunction with its review of the petitioner's 
staffing levels. Counsel states: "It is clear that at the time of the filing of the petition, the [pletitioner was in 
early stages of operations (less than five years) and required few employees." Counsel contends that the 
petitioner's overall stage of development was either ignored by CIS or viewed negatively. Counsel further 
claims that the petitioner's limited staffing levels "should not be negatively dispositive," and notes that "the 
nature of [the] retail business in major malls has shifted the labor responsibilities from the individual retailers 
to the mall lessor . . . thereby reducing the payroll costs of the individual [retailers] like the [pletitioner." 
Counsel cites an unpublished AAO decision as evidence that the size of the petitioner's staffing levels is not 
determinative of the beneficiary's employment capacity. 
Page 6 
Counsel further states "it is possible that an entire absence of subordinate employees would still not 
automatically mean that [the] beneficiary is not acting in a executive and managerial capacity." Counsel 
contends that the beneficiary would be employed as a function manager as he "functions at a senior level of 
the organization," "manages the essential function of finance," and "exercises discretion over the day-to-day 
operations of the financial activities." Counsel claims that CIS ignored the petitioner's "shifting operational 
focus" from retail convenience store to importing and exporting apparel, stating that "this new shift in 
operational focus was corroborated by the trade shows, which the [bleneficiary has attended and is scheduled 
to attend." 
As additional evidence of the beneficiary's purported employment in a primarily qualifying capacity, counsel 
submits on appeal: (1) a statement from the beneficiary documenting his "activities" since his arrival as the 
director of the United States company; (2) a statement detailing the relevance of market awareness and 
positioning in the petitioner's business of selling garments; (3) photographs of the petitioner's booth at trade 
shows attended by the beneficiary; (4) "details regarding two major litigation issues negotiated and ultimately 
successfully resolved by the [bleneficiary on behalf of the [pletitioner"; and (5) evidence of the petitioner's 
sales in its retail kiosks. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
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. 9 204.50)(5). 
The limited statements offered by the petitioner as evidence of the beneficiary's qualifying employment are 
not sufficient to demonstrate that he would be employed in a primarily managerial or executive capacity3. 
The petitioner asserts such blanket claims as: directing "activities" related to planning, administration, 
marketing, sales, purchasing, production, and operations, coordinating "activities" and "investment policies" 
related to the company's subsidiary, reviewing and analyzing "activities, costs, [and] operations," forecasting 
data, and reviewing "company achievements," goals, and objectives. The petitioner represents that the 
beneficiary also "develops long-range goals and objectives," but states only that they are related to the 
company's import and export functions. The petitioner did not offer an additional explanation of the 
referenced "activities," "policies," "operations," "goals" or "objectives." Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question in this 
case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
afyd, 905 F.2d 41 (2d. Cir. 1990). Moreover, 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. Id. at 1108. 
The AAO notes that the job description offered by the petitioner in its response to the director's request for 
evidence identifies essentially the same broad job responsibilities as those outlined in the petitioner's initial 
filing. Despite the director's request for a "definitive statement describing the [beneficiary's] proposed job 
3 
 While both the petitioner and counsel address the beneficiary's employment in a primarily executive 
capacity, the AAO will consider both statutory definitions of "managerial capacity" and "executive capacity." 
duties," the petitioner submitted a similarly vague outline of proposed job responsibilities. The purpose of the 
request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has 
been established, as of the time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The 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). 
Additionally, the record does not corroborate the petitioner's claims that the beneficiary would direct its 
marketing, production, operations, and purchasing functions. Based on the record, the petitioner does not 
employ any workers who would be responsible for the actual performance of the above-named functions, 
thereby allowing the beneficiary the opportunity to direct the functions rather than perform them himself. Of 
the petitioner's store manager and salespersons, none were described as performing the operational tasks 
related to its marketing or purchasing. In fact, in its October 15, 2004 letter, the petitioner initially identified 
the beneficiary as being responsible for the administration, marketing, sales and purchasing activities of its 
subsidiary, thus suggesting that the beneficiary would personally perform the non-qualifying tasks related to 
each of the functions. Moreover, while the petitioner claims that the beneficiary would supervise an import 
and export manager who would perform the related non-qualifying tasks of the petitioning entity, the record 
demonstrates that the import and export manager is actually an employee of the foreign entity. Other than the 
petitioner's claims, there is no specific evidence of the beneficiary's authority to direct the foreign company's 
import and export manager, or that the import and export manager is in fact responsible for performing the 
petitioner's non-qualifying import and export functions. 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)). As the record does not corroborate the purported job responsibilities of the beneficiary, the 
AAO is left to question the validity of the petitioner's claims and the remainder of the beneficiary's claimed 
duties. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 
I&N Dec. 582,591 (BIA 1988). 
The petitioner's unsubstantiated claims further undermine its representations as to the amount of time the 
beneficiary would spend purportedly directing the non-qualifying functions of the business. Based on the 
above discussion, the beneficiary would be primarily performing non-managerial and non-executive tasks, 
particularly those related to the petitioner's marketing. For example, the beneficiary is responsible for 
representing the petitioner at trade shows. The record does not demonstrate that the beneficiary maintains 
merely a public relations role at the trade conventions. See 9 FAM 41.54 N8.2-1 (recognizing that a manager 
or executive may participate in such activities as customer and public relations, lobbying and contracting). 
Rather, it appears that the beneficiary is selling the petitioner's products and marketing its services. The 
supplemental statement on appeal, in which the petitioner notes that the beneficiary attended a trade show in 
Las Vegas "to study the market and analyze it," supports the finding that the beneficiary would personally 
devise the petitioner's marketing strategies. The petitioner further explains that the beneficiary's additional 
responsibilities include meeting with buyers, presenting product samples, taking orders, and determining and 
offering lines of credit, tasks that are not typically deemed to be managerial or executive in nature. See 
$3 lOl(a)(44)(A) and (B). Moreover, the beneficiary is identified as a "contact" on several sales invoices and 
Page 8 
correspondence4, thereby reinforcing the finding of non-managerial and non-executive employment. The 
beneficiary's role in the petitioning entity appears to fall short of a mere public relations or "executive 
networking" position, as claimed by the petitioner, and cannot be considered to be primarily executive. The 
AAO notes that an employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Int 'I., 19 I&N Dec. 593,604 (Comm. 1988). 
An analysis of the petitioner's reasonable needs with respect to its purpose and overall stage of development 
also demonstrates that the beneficiary would not be employed in a primarily managerial or executive capacity. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 101(a)(44)(C) of the Act, 8 U.S.C. fj 1101(a)(44)(C). However, it is appropriate for CIS to consider the 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
As noted by the director, the record demonstrates that the beneficiary is the only full-time worker employed 
by the petitioner. While not determinative of a beneficiary's employment capacity, the part-time employment 
of the petitioner's store manager and salespersons raises the question of how the petitioner's reasonable needs 
with respect to its two retail kiosks would be met. Based on the lease agreements, the petitioner is required to 
operate the kiosks during the shopping mall hours, which may presumably be up to eleven hours a day. The 
petitioner has not explained how it would maintain these two operations with three part-time employees, if 
not for the beneficiary's assistance. The AAO notes insufficiency in counsel's unsubstantiated claim on 
appeal that, as a five-year old company, the petitioner "was in [its] early stages of operations . . . and required 
few employees." Counsel has failed to document how the reasonable needs of the petitioning entity would be 
met through the employment of "few employees." Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. 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). 
Furthermore, the petitioner has not explained the beneficiary's purported continued supervision over the 
foreign entity's staff. Counsel emphasizes in his July 12, 2005 response to the director's request for evidence 
that the beneficiary "continues to oversee a large staff of over one hundred foreign sourced personnel." The 
AAO notes that without additional evidence of the beneficiary's purported supervision over the foreign 
workers or evidence of the responsibilities held by the overseas employees, counsel's claim will not be 
considered in the instant analysis. Again, the unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. at 534. 
A July 25, 2003 and September 15, 2004 invoice for a clothing purchase, a May 14, 2004 letter for paid 
invoices, and various 2003 and 2004 invoices for the gasoline and convenience store identify the beneficiary 
as the contact person for the petitioner's businesses. 
Page 9 
The AAO notes a deficiency in the record with respect to the operations of the gasoline and convenience 
store, which was maintained by the petitioner's subsidiary. From the information contained on the 
subsidiary's quarterly reports, it appears that its store manager and salesperson were also employed on a part- 
time basis. The limited discussion of the gasoline and convenience store, which incidentally appears to have 
been sold by the petitioner less than one month after this filing, limits the AAO's analysis of whether the 
reasonable needs of the store might plausibly be met through the employment of the beneficiary, a store 
manager, and a salesperson. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
The record does not support counsel's additional claim on appeal that the beneficiary would be employed as a 
function manager. 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, 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. 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. 
Here, counsel's argument does not sufficiently detail how the beneficiary would be employed as a function 
manager. Counsel states only that the beneficiary would function at a senior level of the organization, 
manage "the essential function of finance," and exercise "discretion over the day-to-day operations of the 
financial activities." Counsel does not define the finance function or identify the related activities. In fact, 
other than the petitioner's vague statement in its October 15, 2004 letter that the beneficiary would analyze its 
costs and forecast data, the beneficiary's purported role with respect to the petitioner's finances is not 
addressed in the record. Counsel's limited claim is not sufficient to establish that the beneficiary would be 
employed as the petitioner's function manager. The unsupported statements of counsel on appeal or in a 
motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 
183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Despite the petitioner's failure to satisfy the eligibility requirements for the requested visa classification, the 
AAO notes that the director partially based her decision on an incorrect standard. The salaries received by the 
petitioner's lower-level employees, while representative of part-time or full-time employment status, are not, 
by themselves, determinative of whether the beneficiary would be employed in a primarily managerial or 
executive capacity. As noted by counsel and discussed above, section 101(a)(44)(C) of the Act requires CIS 
to take into account the petitioner's reasonable needs in light of its purpose and stage of development if 
considering the petitioner's staffing levels as a factor of the beneficiary's employment capacity. When 
denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this duty 
includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 291 
of the Act, 8 U.S.C. fj 1361. See 8 C.F.R. fj 103.3(a)(l)(i). Notwithstanding the director's error, the record 
does not establish the beneficiary's eligibility for the requested classification. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. 
In its October 15, 2004 letter, the foreign entity noted the beneficiary's role as "one of the main partners" of 
the foreign organization. The foreign entity's director stated that the beneficiary "[was] responsible for 
actively marketing [the foreign entity's] garments and products in trade shows and to customers all over the 
world," and further noted that the beneficiary was "solely responsible for improving [the foreign entity's] sales 
and [ ] brand image." In a subsequent job description, the organization's director identified the beneficiary as 
directing activities and coordinating policies, developing long range goals and objectives, supervising the 
organization's planning, administration, and marketing, sales, purchasing, and operational activities, analyzing 
costs, forecasting data, and reviewing goals. The AAO notes that the foreign entity's initial claims as to the 
beneficiary's exclusive role in its marketing and sales do not comport with the job description subsequently 
offered by the foreign entity. 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. at 591-92. Additionally, the latter description of the beneficiary's position as managing partner of 
the foreign entity addresses essentially the same job duties as those offered for the beneficiary's employment 
as director of the United States company. As already discussed above, the petitioner's statements are overly 
broad and do not identify the specific managerial or executive tasks performed by the beneficiary. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. 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. 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). 
The AAO recognizes that CIS previously approved a nonimrnigrant visa petition filed by the petitioner on 
behalf of the beneficiary. It should be noted that, in general, given the permanent nature of the benefit sought, 
immigrant petitions are given far greater scrutiny by CIS than nonimrnigrant petitions. 
 The AAO 
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of 
managerial and executive capacity. 
 See $9 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 4 1101(a)(44). 
Although the statutory definitions for managerial and executive capacity are the same, the question of overall 
eligibility requires a comprehensive review of all of the provisions, not just the definitions of managerial and 
executive capacity. There are significant differences between the 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. Cf §§ 204 and 214 of the Act, 8 U.S.C. §§ 1 154 
and 1184; see also 9 316 of the Act, 8 U.S.C. 5 1427. 
Because CIS spends less time reviewing L-1 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 25 
(D.D.C. 2003). 
Page 11 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Suva, 
724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of 
required evidence in the present record, the AAO finds that the director was justified in departing from the 
previous nonimmigrant approval by denying the present immigrant petition. 
Finally, 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.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The petition 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. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.