dismissed EB-1C Case: Scientific Instruments

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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U.S. Citizenship 
and Immigration 
File: - Office: CALIFORNIA SERVICE CENTER Date: JUN 0 2 2006 
WAC 97 160 53847 
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. 
/ 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, initially approved the employment-based immigrant 
visa petition. Upon subsequent review, the director issued a notice of intent to revoke, and ultimately revoked 
the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is an organization incorporated in the State of California in December 1995. It claims it 
manufactures, distributes, and exports scientific instruments and equipment to Asia Pacific Rim counties. It 
seeks to employ the beneficiary as its export 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. 5 1153(b)(l)(C), as a multinational executive or manager. 
The petitioner filed the Form 1-140, Petition for Alien worker,' on May 19, 1997 and it was approved July 14, 
1997. Upon subsequent review of the record, the director issued a notice of intent to revoke approval on July 17, 
2004. The director questioned whether the petitioner had established: (1) a qualifying relationship with the 
beneficiary's foreign employer; (2) that the foreign entity continued to do business; or (3) that the beneficiary 
would be employed in a primarily managerial or executive position for the U.S. entity. Counsel for the petitioner 
submitted a rebuttal on August 23, 2004.~ On April 14, 2005, the director revoked approval of the petition, 
determining that the petitioner had not established that a business existed when the petition was filed and that 
documentation submitted was fictitious and submitted only to obtain classification for this immigrant visa. The 
director also determined that the record was insuficient to establish that the U.S. entity owned and controlled the 
beneficiary's foreign employer as claimed. The director observed that the evidence in the record was inconsistent 
and that the petitioner had not submitted evidence in rebuttal to the notice of intent to revoke sufficient to 
overcome the grounds for revocation. 
On appeal, counsel for the petitioner contends: that the director's decision was an abuse of discretion; that the 
director failed to review the evidence in its entirety and misinterpreted the applicable regulations; that the 
evidence clearly shows that the U.S. entity owned 100 percent of the foreign entity since 1993; that the 
evidence presented clearly establishes that the business is not fictitious; that the petitioner met its burden of 
proof establishing that the beneficiary's position would be executive or managerial; and that the law does not 
permit revocation of a previously approved immigrant visa petition where the beneficiary is already in the 
United States. Counsel also notes that the director made no allegation of fraud or misrepresentation but only 
identified grounds of revocation based on the adjudicator's speculative conclusions. 
Section 203(b) of the Act states in pertinent part: 
' The petitioner filed a Form 1-140 (WAC 97 015 51922) on October 21, 1996. The director denied the 
petition on November 15, 1996, determining that the petitioner had not established that the beneficiary would 
be employed in a primarily managerial or executive capacity. 
2 
 The director considered the rebuttal submitted timely as the director's first two attempts to contact the 
petitioner on March 17, 2004 and July 17, 2004 were returned as undeliverable. The AAO observes that the 
director sent a copy of the notice of intent to revoke to the petitioner's counsel and apparently counsel's 
receipt of the notice prompted the rebuttal received by CIS on August 23,2004. 
Page 3 
(1) 
 Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
subparagraph, has been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the 
United States in order to continue to render services to the same employer or to a 
subsidiary or affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement that indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
5 204.5Cj)(5). 
Preliminarily, the AAO notes counsel's reference to an opinion issued by the United States Court of Appeals 
for the Second Circuit, Firstland Int'l, Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004). In that opinion, the court 
interpreted the third and fourth sentence of section 205 of the Act, 8 U.S.C. 8 11 55 (2003), to render the 
revocation of an approved immigrant petition ineffective where the beneficiary of the petition did not receive 
notice of the revocation before beginning his journey to the United States. Firstland, 377 F.3d at 130. 
Counsel asserts that the reasoning of this opinion must be applied to the present matter and accordingly, 
Citizenship and Immigration Services (CIS) may not revoke the approval because the beneficiary did not 
receive notice of the revocation before departing for the United States, since she was already in the United 
States when the director issued the revocation. 
According to the record, the petitioner is located in California; thus, this case did not arise in the Second 
Circuit. Moreover, counsel should note that Firstland is no longer a binding precedent. 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to this matter, section 
5304(c) of Public Law 108-458 amends section 205 of the Act by striking "Attorney General" and inserting 
"Secretary of Homeland Security" and by striking the final two sentences. Section 205 of the Act now reads: 
Page 4 
The Secretary of Homeland Security may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 1154 of 
this title. Such revocation shall be effective as of the date of approval of any such petition. 
Furthermore, section 5304(d) of Public Law 108-458 provides that the amendment made by section 5304(c) 
took effect on the date of enactment and that the amended version of section 205 applies to revocations under 
section 205 of the Act made before, on, or after such date. Accordingly, the amended statute specifically 
applies to the present matter and counsel's Firstland argument is not meritorious. 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. at 590. 
CIS regulations affirmatively require an alien to establish eligibility for an immigrant visa at the time an 
application for adjustment of status is filed. See 8 C.F.R. tj 245.11a). If the beneficiary of an approved visa 
petition is no longer eligible for the classification sought, the director may seek to revoke his approval of the 
petition pursuant to section 205 of the Act, 8 U.S.C. tj 1155, for "good and sufficient cause." Notwithstanding 
the CIS burden to show "good and sufficient cause" in proceedings to revoke the approval of a visa petition, 
the petitioner bears the ultimate burden of establishing eligibility for the benefit sought. The petitioner's 
burden is not discharged until the immigrant visa is issued. Tongatapu Woodcraft ofHawaii, Ltd. v. Feldman, 
736 F.2d 1305 (9th Cir. 1984). 
The AAO specifically observes that the approval of a visa petition vests no rights in the beneficiary of the 
petition, as approval of a visa petition is but a preliminary step in the visa application process. The 
beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Matter of Ho, 19 I&N Dec. 
582 (BIA 1988). Further, counsel should note that generally, a director's decision to revoke the approval of a 
petition will be affirmed, notwithstanding the submission of evidence on appeal, where a petitioner fails to 
offer a timely explanation or rebuttal to a properly issued notice of intention to revoke. See Matter of Arias, 
19 I&N Dec. 568, 569 (BIA 1988). The approval of the petition based on the limited information submitted 
in this matter was clearly a matter of gross error. The petitioner has not provided evidence, either in rebuttal 
or on appeal, to rectify the deficiencies in the original submission regarding the beneficiary's eligibility for 
this visa classification. 
The first issue in this matter is whether the petitioner has established a qualifying relationship with the 
beneficiary's foreign employer. In order to qualify for this visa classification, the petitioner must establish that a 
qualifying relationship exists between the United States and foreign entities in that the petitioning company is the 
same employer or an affiliate or subsidiary of the foreign entity. See section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. 9 204.56)(2) states in pertinent part: 
Afiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In a February 17, 1997 letter appended to the petition, the petitioner indicated that it had been established in 
1988 and that the foreign entity was incorporated in January 1993 as a subsidiary of the petitioner. The 
petitioner also indicated that the president of the petitioner, had invested $200,000 in the 
establishment of the foreign entity. 
The petitioner also provided documents in support of the petition including: 
A proof of publication in the Orange County Reporter for the dates of January 14,21, and 28 
1988 and February 4, 1988 showing that Jeffrey Sun is doing business as American Hi-Tech 
Co.; 
Business Permits for the City of Irvine issued to American Hi-Tech Co., owner Jefffey Sun, 
for 1988, 1989, and 1990; 
Articles of Incorporation for American Hi-Tech Company, Inc. showing that it had been 
incorporated in the State of California in December 1995; 
A Certificate of Limited Partnership for Eucrown, L.P. showing American Hi-Tech 
Company, Inc as the General Partner, filed December 1995, as well as the Limited 
Partnership Agreement; 
Page 6 
A Seller's Permit issued to American Hi-Tech Co. in January 1996; 
The petitioner's (American Hi-Tech Company, Inc.) stock certificate number 1 issued to Jeff 
Sun in the amount of 10,000 shares on January 1, 1996; 
A grant deed conveying property3 to Eucrown, L.P. in January 1996, recorded January 9, 
1996, in the Orange County, California records; 
A grant deed conveying real property (also known as 67 Summitcrest, Dove Canyon Area, 
California) to Jeffrey N. Sun, on April 17, 1996 and recorded May 24, 1996 in the Orange 
County, California records; and 
The petitioner's (American Hi-Tech Company, Inc.'s) 1996 Internal Revenue Service (IRS) 
Form 1120S, U.S. Income Tax Return for an S Corporation, showing $16,994,442 in gross 
receipts, cost of goods in the amount of $12,293,920, and salaries and wages paid in the 
amount of $185,220, as well as a Schedule K-1 for Form 1120s identifying Jeff Sun as the 
petitioner's 100 percent shareholder. 
The initial record did not contain any evidence regarding the establishment of the foreign entity, other than 
the petitioner's statement that its sole shareholder, Jeff Sun, had invested $200,000 in the foreign entity. The 
director did not question the petitioner's relationship with the foreign entity and approved the petition. 
On July 17, 2004, the director issued a notice of intent to revoke approval questioning whether the foreign 
entity existed or ever existed. The director noted that the record did not contain documentary evidence 
establishing the ownership and control of the foreign entity. The director requested: evidence that the U.S. 
parent company has, in fact, paid for the foreign entity, including original wire transfers, cancelled checks, 
deposit receipts, and bank statements detailing the monetary amounts for the stock purchase; the foreign 
entity's articles of incorporation; the foreign entity's list of owners; and the foreign entity's minutes of meeting 
listing its stock shareholders and the number and percentage of shares owned. 
On August 23, 2004, counsel for the petitioner provided documentary evidence in rebuttal. The documents 
included: 
DBA American Hi Tech Co's bank statement for the month of January 1993 
showing funds transferred on January 29, 1993 to Tianjin Hi-Tech Scientific in the amount of 
$50,000; 
DBA American Hi Tech Co's bank statement for the month of February 1993 
showing funds transferred on February 4, 1993 to Tianjin Hi-Tech Scientific in the amount of 
3 
The grant deed references a description of property attached on Schedule 1, but the Schedule 1 is not 
included in the record. 
A translated document dated August 4, 2004 from a foreign bank certifying that the foreign 
entity's account was credited with $50,000 on February 3, 1993 and $150,000 on March 3, 
1993; 
Minutes of the foreign entity's board of director's meeting dated March 5, 1993, indicating 
tha had invested $200,000 in the foreign entity and that holds 100 
percent ownership of the foreign entity; 
The foreign entity's September 5, 1999 resolution changing its name from Tianjin Hi-Tech 
Scientific Instrument Co. Ltd. to Suntek (Tianjin) Science Instrument Co., Ltd.; and 
The foreign entity's articles of incorporation dated January 5, 1993. 
On April 14, 2005, the director revoked approval of the petition, determining that the record was insufficient to 
establish that the U.S. entity owned and controlled the beneficiary's foreign employer as claimed. The director 
observed that the evidence in the record was inconsistent and that the petitioner had not submitted evidence in 
rebuttal to the notice of intent to revoke sufficient to overcome the grounds for revocation. 
On appeal, counsel for the petitioner asserts that the petitioner has met its burden of proof establishing that a 
qualifying business relationship exists with the foreign company. Counsel contends that the evidence establishes: 
m is the owner and president of the U.S. based American Hi-Tech Co., now American Hi-Tech 
Company, Inc. (American Hi-Tech). American Hi-Tech owns and controls 100% of the foreign entity Tianjin 
Hi-Tech Scientific Instrument Co., Ltd. now Suntek Science Instrument Co, Ltd. (Suntek)." 
Counsel's assertion is persuasive in 
 review of the totality of the record, the record contains 
sufficient evidence to establish that 
 owned and controlled the petitioner, American Hi-Tech 
Company, Inc. and owned and controlled Tianjin Hi-Tech Scientific Instrument Co., Ltd. now Suntek Science 
Instrument Co, Ltd., when the petition was filed. Thus the petitioner has established an affiliate relationship 
between the U.S. based petitioner and the foreign entity when the petition was filed. The director in this matter 
has not identified a specific inconsistency or material misrepresentation pertinent to this issue. The director's 
decision on the issue of qualifying relationship will be withdrawn. 
Although the director's decision on the issue of qualifying relationship will be withdrawn, the record does not 
contain sufficient evidence establishing that the beneficiary's position for the U.S. petitioner has been or will 
be in a managerial or executive capacity. Further, the record lacks evidence that either the U.S. petitioner or 
the foreign entity continue to do business as defined in the regulations or continue to enjoy a qualifying 
relationship. Although the director noted these deficiencies in the notice of intent to revoke, and requested 
further evidence on the issue of the foreign entity's conduct of business, the director failed to include adequate 
discussion on either of these issues in his revocation decision. As such, the AAO's review is conducted on a 
de novo basis. The AAO will herein address the merits of the petitioner's evidence and eligibility on these 
issues. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de 
novo basis). 
On the issue of the beneficiary's managerial or executive capacity for the U.S. petitioner, the AAO 
specifically finds that the petitioner's initial description of the beneficiary's duties for the U.S. petitioner, the 
petitioner's organizational structure, and documentary evidence establishing its number of employees and 
their remuneration was insufficient to establish eligibility for this visa classification. The director's approval 
of the petition with the glaring deficiencies in the record regarding this issue constituted gross error. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. 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; 
. . . 
111. 
 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. 9 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. 
 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; 
... 
111. 
 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. 
Specifically, the petitioner's February 17, 1997 description of the beneficiary's duties indicated that: 
Functioning autonomously, [the beneficiary] is responsible for managing and directing all the 
export business activities of the company as they pertain to our international development and 
expansion plans. Her direct subordinates are assistants and see Exhibit 11 
and 12~). The specific duties of [the beneficiary] as the Export Department Manager of [the 
petitioner] include the followings [sic]: 
Supervise the daily operation of the Export Department with the assistance of the 
subordinates. Direct and coordinate export business activities of the company. 
Oversee the work of the staff and assign specific jobs [sic] duties. 
Introduce the manufacturing and exportation projects and product lines of the company 
in the local business circles and seek potential investors and business partners. 
Establish business relationships with business institutions dealing in scientific 
instruments and equipments in the U.S. and in Asia Pacific Rim countries. Set up 
international and domestic distribution channels for manufactured products. 
Keep in close contact with the scientific instrument and equipment market and collect 
the most updated information on the market value of the products. Work out detailed 
plans for the expansion of the company's export business in the U.S. as well as in Asia. 
Direct detailed market survey on scientific instruments and equipments [sic]. Prepare 
reports on the research results and direct the information to the President for reference. 
Contact business partners and potential customers and establish long-term relationships 
with them. Introduce and promote the instruments and equipments of the company in 
the international and domestic market. 
Recruit local professionals for Export Department and make evaluations on the 
working performances of the staff members of the department. Prepare monthly 
reports on business transactions and financial affairs of the company for the reference 
of the President concerning long-term business expansion. 
4 
 The petitioner's list of exhibits attached to the February 17, 1997 letter in support of the petition identified 
Exhibit 11 as the U.S. Corporation Income Tax Return and Exhibit 12 as the Company Financial Statement 
(Form 1040). 
Page 10 
The petitioner provided its organizational chart depicting the beneficiary in the position of export department 
manager and listing two individuals in the positions of "assistant" subordinate to the beneficiary. The 
petitioner also provided its California Form DE-6, Quarterly Wage and Withholding Report, for the quarter 
ending prior to filing the petition. The first quarter California Form DE-6 listed four employees, including 
identified as the president, the beneficiary identified as the export department manager, - 
as the beneficiary's assistant, and an individual identified as the office administration 
department manager who reported to the president and had no subordinate employees. 
 The petitioner 
indicated that the beneficiary's assistant provided customers with advice on the nature, usage, and 
characteristics of different instruments and equipment, informed customers about the quality, price, packing, 
and production period, promoted different models, prepared sales contracts and service agreements, arranged 
shipping procedures, set up the display of sample products, and prepared company brochures. The record 
also contains numerous shipper's declarations signed by the beneficiary on behalf of the petitioner. 
The director approved the petition despite the petitioner's description of the beneficiary's duties demonstrating 
that the beneficiary was involved primarily in marketing and promoting the petitioner's products to other 
businesses, setting up distribution channels, performing market research, and preparing marketing and 
financial reports to present to the president; despite the lack of evidence showing that the beneficiary had 
subordinates who would relieve her from primarily performing these tasks; and despite the lack of evidence 
establishing that the beneficiary supervised or would supervise a subordinate of staff of professional, 
managerial or supervisory employees or manage an essential function. 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 10 1 (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 'l., 19 I&N Dec. 593, 604 (Cornrn. 1988). 
The AAO observes that by itself, the director's realization that a petition was incorrectly approved is good and 
sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 1&N 
Dec.at 590. In this matter, the beneficiary's position clearly failed to satisfy the elements of either the 
definition of managerial capacity or executive capacity. The director noted the failure to establish this 
essential element of eligibility in the notice of intent to revoke but did not request any specific information 
necessary to overcome the deficiency. 
The AAO further observes that the petitioner's August 10, 2004 rebuttal statement consisted of claims 
regarding the beneficiary's managerial or executive capacity without adequate supporting documentation. For 
example, the petitioner asserted that the beneficiary did not perform daily operational functions, but failed to 
identify who in the petitioner's employ marketed, promoted, and arranged distribution of the petitioner's 
product. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In addition, the petitioner asserted that the export department manager served as a key link between the U.S. 
parent company and the foreign subsidiary but failed to explain how this task elevated the beneficiary's 
position to one of managerial or executive capacity. The petitioner asserted further that the beneficiary 
Page 11 
provided leadership within the petitioner by managing, developing, and directing implementation of a full 
range of export issues but failed to detail the daily tasks associated with the "export issues." Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner asserted that the beneficiary developed and managed creative commercial strategies to 
optimize business performance but failed to describe the beneficiary's daily tasks associated with these 
claimed responsibilities. 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. at 1108. 
The petitioner's claim that the beneficiary exercised complete authority over approval of suppliers, functional 
budgets, prioritization of activities, sales offerings to customers, and had joint authority over allocation of 
resources to various functions does not distinguish between the non-qualifying aspects of these operational 
tasks and any possible qualifying aspects of these tasks. An individual will not be deemed an executive or a 
manager under the statute simply because they have an executive or managerial title or because they "direct" 
the enterprise as the sole managerial employee. 
Finally, the record does not contain any evidence of the personnel the petitioner employed when the petition 
was filed and continuing until the director's revocation decision, other than the beneficiary and the 
owner/president of the U.S. entity. As such, any input the beneficiary may have had relating to personnel 
decisions cannot be substantiated and does not assist in determining that the beneficiary's position is a 
managerial or executive position. Likewise, whether the beneficiary is only one of two persons authorized to 
access the petitioner's business bank accounts has little or no bearing on the beneficiary's managerial or 
executive capacity. 
The only documentation submitted to show that the beneficiary performed any of the broadly stated 
objectives was an authorized signature card for the petitioner's bank showing the beneficiary as a signatory 
and a purchase invoice sent to the beneficiary's attention and accepted by her. These documents do little but 
confirm that the beneficiary is the individual selling the petitioner's products. The petitioner did not provide 
any documentary evidence that would establish that the beneficiary's position with the U.S. entity when the 
petition was filed was in a managerial or executive capacity or that the position ever became more than a 
marketing or sales position. Again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 
165. 
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). In addition, as observed above the petitioner bears the ultimate burden of establishing 
eligibility for the benefit sought and that burden is not discharged until the immigrant visa is issued. 
Page 12 
Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). Counsel's assertion on 
appeal that the description of the beneficiary's duties associated with her position as export manager clearly 
shows that the majority of the beneficiary's time is spent in executive or managerial functions is not 
persuasive. 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). Moreover, the deficiency in the record regarding the 
petitioner's continuing employment of individuals other than the beneficiary and the president'owner casts 
doubt on the legitimacy of the petitioner's initial offer of employment; as the petitioner has not established 
that the petitioner ever achieved the organizational complexity wherein hiringlfiring personnel, discretionary 
decision-making, and setting company goals and policies would constitute significant components of the 
beneficiary's duties performed on a day-to-day basis. 
The record does not contain evidence establishing that the beneficiary's duties for the U.S. petitioner were or 
will be in primarily a managerial or executive capacity. The record is deficient in establishing that the 
beneficiary performed primarily managerial or executive duties when the petition was filed or that the 
beneficiary continues to perform primarily managerial or executive duties for the petitioner. For this reason, 
the petition will not be approved. 
The AAO also finds that the record is deficient in establishing that the U.S. petitioner and the foreign entity 
continue to do business, thus maintaining the multinational nature of the U.S. entity. 
The regulation at 8 C.F.R. 9 204.5(j)(2) states in pertinent part: Multinational means that the qualifying entity, 
or its affiliate, or subsidiary, conducts business in two or more countries, one of which is the United States. 
The regulation at 8 C.F.R. tj 204.5(j)(2) states in pertinent part: "Doing Business means the regular, 
systematic, and continuous provision of goods andlor services by a firm, corporation, or other entity and does 
not include the mere presence of an agent or office." 
The record contains one purchase order and supporting documentation dated June 2004 to show that the 
petitioner continues to do business. However, despite the director's request for evidence in the notice of intent 
to revoke to establish that the foreign entity continues to do business, the petitioner failed to provide legible, 
dated documentation to establish this fact. 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). The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. tj 103.2(b)(2)(i). 
In response to the director's request, the petitioner provided balance sheets allegedly for the foreign entity for 
2001, 2002, and 2003. The balance sheets do not contain sufficient information linking them to the foreign 
entity. The petitioner also provides bank statements with a key translation but with no information 
establishing the month or year the bank statements were allegedly issued. The photographs of the foreign 
entity do not contain any evidence identifying where the photographs were taken or any other identifying 
features to demonstrate that the photographs are of the foreign entity conducting business. The foreign 
entity's brochures do not contain the dates that the brochures were published. The record does not contain 
sufficient independent evidence to establish that the foreign entity continues to conduct business or that the 
foreign entity continues to enjoy a qualifying relationship with the petitioner at this time. The record is 
Page 13 
insufficient to establish that the petitioner is a multinational entity, thus the petition for the beneficiary to be 
employed as a multinational manager or executive cannot be approved. 
The AAO acknowledges that CIS approved an initial L-1A nonimmigrant transferee petition that had been 
filed on behalf of the beneficiary; however, counsel should note that prior nonimmigrant approvals do not 
preclude CIS from denying an extension or a separate immigrant petition. See e.g. Texas AM Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The AAO acknowledges that both the 
immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and executive 
capacity. See $5 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 101(a)(44). Although the statutory definitions 
for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. CJ: $9 204 and 214 of the Act, 8 U.S.C. $$ 1154 and 1184; see also $ 316 of the 
Act, 8 U.S.C. $ 1427. In addition, the initial approval of the Form 1-140 without a request for further 
evidence to clarify or explain the substantial deficiencies in the record, is clear error on the part of the 
director. 
In general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. Accordingly, many Form 1-140 immigrant petitions are denied after CIS 
approves prior nonimmigrant Form 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because CIS spends less time reviewing 
Form I- 129 nonimmigrant petitions than Form I- 140 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.F.R. 
$ 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A petition's 
validity). 
Moreover 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 merits. See 8 C.F.R. $ 103.8(d). The 
approval of a nonimmigrant petition does not guarantee that CIS will approve an immigrant petition filed on 
behalf of the same beneficiary. As the evidence submitted with this petition does not establish eligibility for 
the benefit sought, the director was justified in departing from previous nonimmigrant approvals by revoking 
approval of the immigrant petition. 
In addition, if the previous nonimmigrant petitions were approved based on the same unsupported 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). 
Page 14 
Further, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). The petitioner has not provided evidence or argument on appeal 
sufficient to overcome the director's decision. 
The approval of the petition will be revoked for the above stated reasons, with each considered as an 
independent and alternative basis for revocation. 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. 8 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.