dismissed EB-1C Case: Sales And Logistics

(b)(6)
DATE: OCT 21 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S . Citi ze nship and Immi gration Servic es 
Administr ati ve Appe a ls Offi ce (A AO) 
20 Massa chusett s Ave. N.W ., MS 2090 
Washingt on, DC 205 29-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION : Immigrant Petition for Alien Worker as a Multinational Executiv e or Manager Pursuant to 
Section 203(b)(l )(C) of the Immigration and Nationality Act, 8 U.S.C. § ll53(b)( I )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclo sed please find the deci sion of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new construction s of law nor establi sh agency 
policy through non-precedent deci sions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appe al or Motion (Form I-290B) 
within 33 day s of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R . § I 03.5. Do not file a motion directly with the AAO. 
Thank you , 
14-jL-Ron Rosenberg 
Chief, Administrative Appeal s Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida limited liability company that seeks to employ the beneficiary as its sales and 
logistics manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ II 53(b)(l )(C), as a multinational executive or manager. 
The record shows that the petitioner filed the Form I-140 on June 12, 2012 claiming eight employees and a 
gross annual income of $55,360. The petitioner submitted a number of supporting documents including a 
statement from counsel dated June ll , 2012. The petitioner's evidence included corporate , financial, and 
business documents pettaining to the beneficiary's former employer abroad and the petitioning U.S. 
employer. Counsel claimed that the petitioner had nine employees at the time of filing and described the 
basis for the affiliate relationship between the petitioner and the beneficiary's former employer abroad. 
After reviewing the petitioner's submissions, the director determined that the petition did not warrant 
approval. Accordingly, on November 9, 2012, the director issued a request for evidence (RFE) instructing the 
petitioner to provide supplementary job descriptions for both positions, listing the beneficiary's specific daily 
job duties with each entity and the amount of time allocated to each of the listed tasks. The director also 
instructed the petitioner to provide both entities' organizational charts. With regard to the petitioning entity, 
the director asked that the petitioner state the job titles, job descriptions, and educational levels of any 
subordinate employees or contractors who performed services for the petitioner and to indicate whether the 
subordinate s are employed on a patt- or full-time basis. Lastly, the director instructed the petitioner to 
provide the IRS Form W-2 Wage and Tax statements issued during the relevant time period as well as the 
petitioner's quarterly tax returns for 2012. 
The record shows that the petitioner's response was received on February l, 2013. The response inc! uded a 
statement from counsel dated January 31, 2013 in which counsel claimed that the beneficiary was employed 
abroad in an "Executive/Managerial position" until his transfer to work for the petitioning entity. The 
petitioner submiued a separate statement dated January 28, 2013, which included job descriptions pertaining 
to the beneficiary and his subordinates in his foreign and U.S. positions, organizational charts, and the 
petitioner's quarterly and annual tax returns as well as the petitioner's employees' Form W -2 statements for 
2012. The record shows that while the petitioner provided a I ist of the beneficiary's former job duties during 
his employment abroad , the list was not accompanied by the requested time constraints indicating how much 
time the beneficiary allocated to each of his assigned tasks. 
The director reviewed the petitioner's response and supporting documents and issued a decision dated March 
I 5, 2013 concluding that the petitioner failed to establish: (1) that it had the ability to pay the beneficiary's 
proffered wage at the time the Form I-140 was filed: (2) that the beneficiary was employed abroad 111 a 
qualifying managerial or executive capacity; or (3) that the petitioner would employ the beneficiary in a 
qualifying managerial or executive capacity. 
Although the director briefly observed that the record contains insufficient evidence of a qualifying 
relationship between the petitioner and the beneficiary's former employer abroad, the analysis that preceded 
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and subsequently followed this single statement was focused entirely on the benefi c iary ' s employment 
capacity in his prior position with the foreign entity, his proposed position with the petitionin g entity, and the 
petitioner's ability to pay the beneficiary's proffered wage. The lack of an analysis or further explanation 
expounding on the issue of a qualifying relationship leads the AAO to conclude that director ' s adverse 
conclusion regarding the petitioner 's qualifying relationship with the beneficiary 's fore ign employer was 
made in error due to inadvertent oversight. Moreover, looking to the evidence of record, the director' s 
conclusion regarding the petitioner's qualifying relationship with the foreign entity was not warranted. In 
light of these factors, the AAO hereby withdraws the conclusion regarding the lack of a qualifying 
relation ship, as such conclusion appears to have been unintentionally included in the decision and is not 
supported by the evidence of record. 
On appeal, counsel submits an appellate brief in which he dispute s the director' s adverse findings . Couns el 
provides an analysis of the petitioner's 2012 tax return and urges the AAO to consider the additional tax 
evidence, which addresses the issue of the petitioner's ability to pay . With regard to the two remaining issues 
that pettain to the beneficiary 's managerial or executive capacity in his former and proposed employment, 
counsel asserts that most of the beneficiary 's subordinates have been supervisory or professional employees. 
Counsel points out that the beneficiary is currently classified as an L-1 A nonimmigrant and further state s that 
the petitioner has had a total of two approved L~ 1 nonimmigrant petition s, thus indicating that the instant 
petition should also be approved given that the same definitions of managerial and executive capacity apply to 
both the instant immigrant petition and the previously filed nonimmigrant petitions . 
After reviewing the petitioner's submissions on appeal, the AAO finds that sufficient evidence has been 
provided to overcome the director's adverse finding with regard to the petitioner ' s ability to pay. Therefore, 
the remainder of this discussion will focus on the two remaining issues that pertain to the benefici ary' s 
employment capacity in his positions with the foreign and U.S . entities. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens de scribed in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is desc ribed 
in this subpar agraph 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 I 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. 
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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 I-140 for classification of an alien under section 
203(b)( I )(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 petformed by the alien. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 110l(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 10l(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization 111 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; 
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NON-PRECEDENT DECISION 
(iii) exercises wide latitude in discretionary decision-making ; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In general, when examining the executive or managerial capacity of the beneficiary, the AAO reviews the 
totality of the record , starting first with the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 
§ 204.5Q)(5). A detailed job description is crucial, as the duties themselves will reveal the true nature of the 
beneficiary's foreign and proposed employment. Fed in Bros. Co., Ltd. v. Sava, 724 F. Supp. I I 03 , II 08 
(E.D.N .Y. 1989), ajj'd, 905 F.2d 41 (2d . Cir. 1990). The AAO will then consider this information in light of 
other relevant factors, including (but not limited to) job descriptions of the beneficiary's subordinate 
employees, the nature of the business conducted by the entity or entities in question, the size of each entity ' s 
subordinate staff, and any other facts contributing to a comprehensive understanding of the beneficiary's 
actual roles in the two respective entities. 
Applying the above analysis to the beneficiary's former position with the foreign entity, the job description 
that was provided in response to the RFE indicates that the beneficiary's position was comprised, in part, of 
non-qualifying tasks. As such, assigning time allocations to the beneficiary ' s individual job duties becomes a 
crucial aspect of establishing that the beneficiary spent the primary portion of his time performing qualifying , 
rather than non-qualifying job duties. In the present matter, despite the director's express RFE instruction 
asking the petitioner to indicate how much time the beneficiary spent on each of his assigned job duties, the 
petitioner did not provide the requested information. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03.2(b)(14). 
Based on the cun·ent record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. The petitioner's description of the beneficiary's job duties does not 
establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is actually 
non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991 ). Given the lack of time 
constraints, the AAO cannot determine whether the beneficiary, in his role as sales and logistics manager the, 
have allocated his time primarily to qualifying tasks, or whether he primarily petformed non-qualifying tasks , 
such as negotiating loans and credit terms, meeting with potential clients, bidding on upcoming project s, and 
overseeing subordinates who do not qualify as supervisory or professional employees. 
With regard to latter to the beneficiary's responsibility for overseeing non-supervisory or non-professional 
personnel, the foreign entity's organizational chart shows that the beneficiary's direct subordinates included a 
logistics supervisor, a sales supervisor, and one employee in the legal depattment. The statutory definition of 
"managerial capacity" allows for both "personnel managers" and "function managers ." See section 
IOJ (a)(44)(A)(i) and (ii) of the Act , 8 U.S.C. § 110l(a)(44)(A)(i) and (ii). Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
Contrary to the common understanding of the word "manager," the statute plainly states that a "first line 
supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's 
supervisory duties unless the employees supervised are professional." Section 101 (a)(44)(A)(iv) of the Act; 8 
(b)(6)
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C.F.R. § 214.2(l)(l)(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary must also 
have the authority to hire and fire those employees, or recommend tho se actions , and take other personnel 
actions. 8 C.F.R . § 214.2(l)(l)(ii)(B)(3). 
The subordinate who could be deemed a supervisory employee is the logistics supervisor based on his 
supervision of two subordinate employees, as indicated in the submitted organizational chart. Neither the 
sales supervisor nor the legal department employee was shown as overseeing the work of subordinates. 
Further, the record is devoid of evidence establishing the requested educational credentials for either of these 
employees . The petitioner therefore failed to establish that either the sales supervisor or the legal department 
employee occupied professional roles within the foreign entity, thus any time spent overseeing and managing 
the work of these employee s may not fall within the parameters of managerial or executive capacity. 
On appeal, counsel for the first time contends that the beneficiary qualified as a function manager within the 
foreign company. Counsel focuses on his level of discretionary authority, top placement within the foreign 
entity's organizational hierarchy, his effect on profits and operations, and oversight of subordinate personnel. 
It is noted , however , 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 10l(a)(44)(A)(ii) of the Act , 8 U .S.C. § IIOI(a)(44)(A)(ii). 
Any petitioner claiming that the beneficiary is managing an essential function must furnish a written job offer 
that clearly describes the duties to be performed, i.e., identifies the function with specificity, mticulates the 
essential nature of the function, and establishes the proportion of the beneficiary's daily job duties attributed 
to managing the essential function. 8 C.F.R. § 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. An employee who primarily performs the tasks necessary to produce a product 
or to provide services is not considered to be employed in a managerial or executive capacity . See sections 
I 01 (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, 604 (Comm. 1988). 
Here, the petitioner did not establish that the beneficiary was employed as a function manager, as it failed to 
establish that his role was comprised of primarily managerial duties and it failed to articulate the essential 
function that he managed. The beneficiary cannot be considered to manage an "essential function" simply 
because he was the senior employee in the foreign entity's organization. 
The petitioner maintains the burden of establishing eligibility by the preponderance of the evidence standard, 
which requires the petitioner to establish that the beneficiary was more likely than not employed in a 
qualifying capacity. In light of the deficiencies discussed thus far, it cannot be concluded that the beneficiary 
more likely than not allocated his time primarily to the performance of qualifying managerial or executive job 
duties during his employment abroad. Accordingly, the petition cannot be approved. 
Next , turning to the beneficiary's proposed employment with the U.S. entity, the AAO will first review the 
beneficiary's job description, which, like the beneficiary's job description with the foreign entity, fails to 
conform to the express instructions of the RFE . Specifically , the RFE instructed the petitioner to list the 
beneficiary's specific job duties and to assign a time allocation to each individual task. The record in the 
present matter shows several job dutie s and responsibilities grouped together into subcategories with a 
specific time allocation assigned to categories A-G, each of which includes anywhere from three to six job 
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duties. For instan ce, the pet itioner indicated that the beneficiary would spend one hour of his time performing 
the five job dutie s that comprise category B. How ever, the petitioner did not indicat e the specific time 
breakdown among the individual job duties, despite the fact that not all of the job duties within this category , 
including meeting with clients for new project developments, have been established as fitting the criteri a of 
manag erial or exec utive ca pac ity. The petitioner also failed to specifically define what is entailed in 
organizing and oversee ing the development of different forms of marketing, which was included in catego ry 
B. In other words, the petitioner failed to identify beneficiary' s specific role with respect to mark eting given 
the petitioner' s staffing and stag e of development at the time of filing. Given that hiring marketing 
companies was liste d among the beneficiary's job dutie s within category B, the petitioner is expected to 
provide eviden ce to establish who was available to provide the required marketing se rvices at the time the 
petition was filed. Going on rec ord without supporting documentary evidence is not suffic ient for purpos es of 
meeting the burden of proof in these proceedings . Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm . 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Without such 
eviden ce, it is unclear whether the beneficiary himself was carrying out marketing-rel ated tasks and thus 
performing the petition er' s non-qu alifying operational tasks to some deg ree. 
Turning to the job duti es within category C, which would consume another hour of the ben eficiary 's time , the 
petition er indicated that the benefi ciary would "manage" the relationship between the petitioner and the entity 
performin g the environmental evaluati on. However, the petitioner did not clarify how the beneficiary planned 
to manage the company that would provide this important service given that the service wo uld apparently be 
out sourced and performed by individuals who would not be directly employed by the petitionin g entity. The 
petitioner was similarl y vague in failing to explain what specific tas ks would be performed in the 
beneficiary 's effmt to "oversee" the companie s hired to perform variou s water pollution studi es . 
Th e AAO encount ered similar ambiguities when reviewing the job dutie s in seve ral other categories, which 
also left the beneficiar y's specific task s undefined. Namely , in category D, the petitioner indic ate d that the 
benefic iary would monitor purchase orders and product delivery . However, there is no information 
identifying who would make purch ase orders and delivery arrangement s. Similarly, the petitioner 's claim that 
the benefici ary would man age the procurement of equipment and replacement parts is not accompanied by a 
discussion of who ac tually completes the procurement tasks. If the benefi ciary 's role as monitor and man age r 
also includes carrying out the underlying operational tasks , then it cannot be concluded that the beneficiary ' s 
role is limited to that of a manag er or exec utive under the sta tutory definiti on of managerial or executive 
capacity . The job duties listed under category E pose similar complication s, as the underlyin g job duties 
broadly state that the benefi ciary would direct new expansion projects and supervi se and implem ent 
engineering studies. The petitioner did not explain what task s would be entail ed in directing new expansion 
project s; nor did the petitioner clarify who would conduct the eng ineering s tudie s that the ben efic iary would 
supervi se or how, precisely he would implement such studie s without carrying out daily operational tasks. 
That being said, the petitioner did not establish that studying the development of new product s, which was the 
third job duty include in category E, fit s within the statutory criteria of managerial or executive capacity. 
While ca tegor y F i s comprised of budget-related duties that focus on the benefic iary's executive role as a 
board member , the se duti es would consume only 45 minute s of the beneficiary' s day and thus would not 
compri se the prim ary portion of the proposed employment. Lastly, in reviewing the human reso urces and 
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mai ntenanc e tasks that comprise job category G, it is unclear how interviewing or conducting repair audits on 
plant equipment qualify as tasks within a managerial or executive capacity. 
In reviewing the beneficiary 's job description, the AAO will not base an adverse decis ion on any si ngle job 
duty, as the objective is to assess the job description cumulatively in order to determine whether the total 
amount of time the beneficiary would allocate to the qualifying tasks significantly surpasses the time that 
would be spent performing operational tasks that are not within a qualifying managerial or executive capacity. 
While no beneficiary is required to allocate 100 % of his or her time to managerial- or executive-level tasks, 
the petitioner mu st establish that the non-qualifying tasks the beneficiary would perform are only incidental to 
the beneficiary's position. 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 International, 19 I&N Dec. 593, 604 (Comm. 
1988). In the present matter, the petitioner failed to provide a job description that would allow USCIS to 
determine how much time the beneficiary would allocate to each of his individual tasks. 
In revi ewing the totality of the evidence, the petitioner's organizational structure has also bee n considered. 
The record shows that the petitioner provided two organizational charts in the RFE response. The petitioner 
explained that one chart provides a general overview of the organization while the other chart's depiction is 
more detailed. The general expectation from the charts' respective titles is that both charts would have the 
same basic foundation and that the more detailed chart would simply build on the broader scope of 
inform ation found in the general chart. However, a comparison of the two charts shows several 
inconsistencies that go beyond mere differences in the degree of detail. Specifically, while both c hart s 
contain an operations depaitment headed by and a sales and logistics depa1tment headed by the 
beneficiary , the subordinate positions that support each department are not consistent from one chart to the 
other. Looking first to the beneficiary's sales and logistics department, the general organizational chart show s 
a logistics assistant, an international sales supervisory, and a payroll supervisory as the beneficiary's direct 
subordinates, followed by a packing position and an office and maintenance cleaning position subordinate to 
the logistics assistant. However, the detailed chart shows that the following five positions are the 
beneficiary 's direct subordinates: sales logi stics, a maintenance department , a mold s and tools workshop, an 
accountant, and ' ' The chart claimed to be detailed does not show a logistic s 
assistant, an international sales assistant, or a payroll supervisor; nor does this chart indicat e that someone 
from sales and logistics oversees the packing or office maintenance and cleaning. Rather , the beneficiary is 
show as directly overseeing one individual in the maintenance depa1tment as well as ' 
which may be an outsourced company contracted to perform a certain service. Finally, in 
reviewing the supporting evidence, which included the petitioner's busine ss invoic es, the record show s that 
the individual whom the detailed organizational chart identified under mold s and tooling shop actually issued 
invoices for molds he made and subsequently sold to the petitioner. It has not been es tablished that thi s 
individual is actually an employee of the petitioning entity. Rather , he appears to be a vendor who provides a 
service for , but is not employed by , the petitioning entity . 
The AAO reveal s similar inconsistencies during a comparison of the two charts' respective depictions of the 
operations department. While the general chart shows the operations manager overseeing a maintenanc e 
depmtment, a furnace department, and a cutting department, the detailed chart shows the operations manager 
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overseeing a laminate department, which was not included at all in the general chart, a cutting depattment, a 
furnace depattment, and autoclave operations, the latter of which was also not included in the general chart. 
In fact, the detailed chart does not include a maintenance department , and confusingly lists the laminate 
depattment twice-once directly subordinate to the beneficiary, and a second time under the cutting 
department's management. While the chart shows two different employees occupying positions in the two 
laminate departments, it is unclear why this department is depicted in two different places within the 
operations department. Lastly, while the general chart shows the operations manager overseeing a 
maintenance department, which then oversees the molds and tooling workshop, the detailed chart shows no 
difference between the hierarchical placement of the maintenance department and the molds and tooling 
workshop, both of which are listed under the sales and logistics depattment rather than the operations 
depattment. Furthermore, there is no indication that either chart is actually relevant to the matter at hand, as 
the petitioner claimed only eight employees on the ,Form I-140 at the time of filing , while the detailed chart 
lists a total of twelve positions, thus indicating that the staffing structures described therein do not pertain to 
the petitioner's organizational structure at the time of filing, but rather reflect additional staff that may have 
been hired after the filing took place. While counsel claimed in one of his supporting statements that the 
petitioner had nine employees at the time of filing, this claim is not corroborated by the evidence on record. 
Without documentary evidence to support the claim, the assettions 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. I (BIA 1983); Matter of Ramir ez.-Sanchez., 
17 I&N Dec. 503, 506 (BIA 1980). 
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). Moreover, the petitioner must 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, I 9 I&N Dec. 
582, 591-92 (BIA I 988). None of the above described inconsistencies have been addre ssed or resolved. 
In the present matter, the record has been supplemented with a deficient job description and inconsistent 
organizational charts that fail to establish who specifically the petitioner employed at the time of filing and 
what services were being provided by outside contractors. These considerable deficiencies contribute to an 
overall lack of understanding of the specific job duties performed by the beneficiary and his subordinates. 
Without this material information, it cannot be determined that the beneficiary would allocate his time 
primarily to the performance of tasks within a qualifying managerial or executive capacity and on the basis of 
this additional finding the instant petition cannot be approved. 
The AAO acknowledges that USCIS approved two L-1 nonimmigrant pettttons filed on behalf of the 
beneficiary . It must be noted that many I-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant I-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. oflustice, 48 F. Supp. 2d 22 (D .D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 
724 F. Supp. II 03 (E .D.N.Y. 1989). Examining the consequences of an approved petition, there is a 
significant difference between a nonimmigrant L-lA visa classification , which allows an alien to enter the 
United States temporarily , 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. 
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Cf. §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also§ 316 of the Act, 8 U.S.C. § 1427. 
Because US CIS spends less time reviewing I-129 nonimmigrant petitions than I- I 40 immigrant petitions , 
some nonimmigrant L-1 A petitions are simply approved in error. Q Data Consulting , Inc. v. INS, 293 F. 
Supp . 2d at 29-30; see also 8 C.P .R.§ 214 .2(1)(14)(i)(requiring no supporting documentation to file a petition 
to extend an L-1 A petition's validity). 
In making a determination of statutory eligibility, USCIS is limited to the information contained in that 
individual record of proce ed ing. See 8 C.F.R. § 103.2(b)(l6)(ii) . If the previous nonimmigrant petitions 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 becau se of prior 
approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, I 9 I&N Dec. 
593, 597 (Comm'r 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 I 084, I 090 (6th Cir. 1987), cert. 
denied, 485 U.S. I 008 (I 988). 
Furthermore, the AAO's authority over the service centers is comparable to the re lationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigr ant 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 I 139 (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 basi s for denial. In visa petition proceedings , it is the petitioner's burd en to establish eligibility for 
the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matt er of Otiend e, 26 I&N Dec. 
127, 128 (BIA 201 3). Here, that burden has not been met. 
ORDER: The appeal is dismissed.