dismissed EB-1C Case: Software Development

identifying data delcted to 
prevent ciearly unwsrranied 
invasion of pznonal pri vccj 
U.S. Departme~lt of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: LIN 06 25 1 52707 
 Office: NEBRASKA SERVICE CENTER 
 Date: 
JUN 0 4 2009 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 3 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
' 
LIN 06 25 1 52707 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a limited liability company organized in the State of New York. It seeks to hire the 
beneficiary as its executive vice president. Accordingly, the petitioner endeavors to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the beneficiary would not be employed 
in a qualifying managerial or executive capacity. 
On appeal, the petitioner submits a brief statement disputing the director's findings. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's application for 
classification and admission into the United States under this subparagraph, has been 
employed for at least 1 year by a firm or corporation or other legal entity or an affiliate 
or subsidiary thereof and who seeks to enter the United States in order to continue to 
render services to the same employer or to a subsidiary or affiliate thereof in a capacity 
that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers 
who have previously worked for 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 I- 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 primary issue in this proceeding is whether the petitioner has established that it would employ 
the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 11 01 (a)(44)(A), provides: 
LIN 06 25 1 52707 
Page 3 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 
 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or 
function of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated July 21, 2006 in which 
- president of the petitioning entity, stated that the purpose of the beneficiary's transfer to the 
United States was to expand the sales and marketing of the US. based entity. 
On July 3, 2007, the director issued a request for additional evidence (WE), instructing the 
petitioner to submit, inter alia, a detailed description of the beneficiary's proposed job duties, the 
types of employees to be supervises, and the beneficiary's level of authority. The petitioner was also 
LIN 06 25 1 52707 
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asked to provide a copy of its organizational chart showing the beneficiary's position within the 
company's organizational hierarchy. 
In response, the petitioner provided a letter dated July 12, 2007, signed by the company's president, 
who stated that the beneficiary's proposed job duties include providing leadership; planning and 
developing the petitioner's software and electronic designs; building relationships with prospective 
clientele, i.e., conducting negotiations, presentations, and road shows; entering into business 
relationships with strategic partners, such as software distributors and software and electronic 
development companies; and coordinating the sales, marketing, and advertising activities. The 
petitioner also provided a copy of its 2005 and 2006 tax returns. The Form 1065 for 2006, the year 
during which the Form 1-140 was filed, shows that the petitioner paid $12,800 in salaries and wages. 
Although requested in the WE, the petitioner did not provide the U.S. entity's organizational chart 
and thereby failed to illustrate the beneficiary's position within the organizational hierarchy that was 
in place at the time the Form 1-140 was filed. It is noted that failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). 
On October 18,2007, the director issued a decision denying the petition based on the conclusion that 
the petitioner failed to establish that it would employ the beneficiary in a qualifying managerial or 
executive capacity. Although the director referred to the petitioner's current staff of three 
employees, there is no evidence on record to corroborate the director's assumption. 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. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Here, the petitioner has 
claimed three employees in Part 5, Item 2 of the Form 1-140. However, the record lacks any 
documentation to substantiate this claim. 
On appeal, , on behalf of the petitioner, provides a letter dated November 6, 2007, 
which contains a supplemental job description for the beneficiary and refers to the organizational 
chart being submitted as additional supporting evidence. However, the organizational chart will not 
be considered. The regulation states that the petitioner shall submit additional evidence as the 
director, in his or her discretion, may deem necessary. 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). As previously noted, failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. 5 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the 
first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the organizational chart to be 
considered, the document should have been submitted in response to the director's request for 
evidence. Id. Under the circumstances, the AAO need not consider the newly submitted document. 
With regard to the beneficiary's job description, claims that the beneficiary directs the 
software development and electronics circuits design portion of the U.S. business. He states that the 
LIN 06 25 1 52707 
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beneficiary has em lo ees in New York, California, and Russia who help support the U.S. business 
operation. claims that the employees in Russia are the means to directing operations 
and fulfilling orders through the use of Russian subcontractors and scientific institutes. He claims 
that there is one employee in California, who supports the petitioner's key client companies, while 
the petitioner's controller/accountant and executive assistan< who comprise the administrative staff, 
are located in New York. Although claims that the petitioner is currently in the 
process of obtaining additional staffing by outsourcing to local Russian companies, eligibility must 
be established at the time of filing and cannot be based on facts and circumstances at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Kutigbak, 14 
I&N Dec. 45, 49 (Comm. 1971). As such, -, who signed a contract on August 20, 
2007, agreeing to assume the position of consultant for the petitioner, will not be considered in 
determining the petitioner's eligibility, as she was clearly not working for the petitioner at the time 
the Form 1-140 was filed. 
In light of the above, the AAO notes that, while the petitioner provided job offer acceptances signed 
by and on April 25,2006 and January 11,2006, respectively, there 
is no indication of when either individual commenced his or her employment, as both letters stated 
that the commencement date "is to be discussed." In light of this uncertainty, there is no evidence 
that either individual was actually working for the petitioner as of August 2006 when the Form 1-140 
was filed. Such information is highly relevant to the petitioner's eligibility as the petitioner must 
establish that at the time of filing it had the capability of relieving the beneficiary from having to 
primarily perform non-qualifying tasks. In reviewing the relevance of the number of employees a 
petitioner has, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to 
support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 
(9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 
1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiarn); Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial 
or non-executive operations of the company, or a "shell company" that does not conduct business in 
a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). Here, the record lacks evidence to establish that the petitioner was adequately staffed such 
that it was able to employ the beneficiary in a primarily managerial or executive capacity at the time 
the Form I- 140 was filed. 
Another highly relevant factor that is considered in determining the petitioner's eligibility is the 
description of the beneficiary's proposed job duties. The regulation at 8 C.F.R. fj 204.5(j)(5) 
expressly requires that the petitioner provide a detailed description of the beneficiary's proposed job 
duties when filing the petition. In the present matter, the information provided is deficient and does 
not effectively convey a meaningful understanding of the tasks the beneficiary would be undertaking 
on a daily basis and how those tasks fit the definition of managerial and/or executive capacity. On 
appeal, claims that the beneficiary "establishes goals and policies, does decision[-] 
making on his own, and only receives general supervision from the President, and other 
stockholders" and further states that the beneficiary is only involved in "high-level" client meetings, 
while the daily operational tasks are generally performed by the support staff previously discussed. 
' 
LIN 06 25 1 52707 
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However, as previously pointed out, the petitioner has provided no documentation establishing 
exactly whom it employed at the time of filing. Moreover, the general description of the 
beneficiary's proposed employment is insufficient to establish what specific tasks the beneficiary 
would perform. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 11 03 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the 
employment. Id. Even if, arguendo, the petitioner did have the one employee in California, two 
employees in New York, and the outsourced staff in Russia to carry out some of the petitioner's daily 
operational tasks, the petitioner has provided no information to explain who, other than the 
beneficiary, would actually market and sell the services that generate income. While - 
claims that the beneficiary meets only with the petitioner's high-level clientele, he offers no 
clarification as to who meets with other clients and in general who addresses customer questions, 
concerns, and other customer service issues. In other words, even if the petitioner is able to establish 
the existence of some staff members and adequately discusses the services they provide, the burden 
is still on the petitioner to describe the specific tasks to be performed by the beneficiary. Here, the 
petitioner has not, in fact, discussed the beneficiary's proposed job duties or the specific services the 
purported support staff would provide; nor has the petitioner even established the existence of a 
support staff at the time of filing. Therefore, the petitioner has failed to establish that it was able to 
employ the beneficiary in a qualifying managerial or executive capacity at the time of filing. For 
this reason, the director's decision must be affirmed. 
Furthermore, the record does not support a finding of eligibility based on at least one additional 
ground that was not previously addressed in the director's decision. Specifically, 8 C.F.R. 
9 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed abroad 
in a qualifying managerial or executive position for at least one out of the three years prior to his 
entry to the United States as a nonimmigrant to work for the same employer. While m 
addressed this issue in his response to the RFE, the job description provided is overly general and 
fails to delineate the beneficiary's job duties during his employment abroad. Despite the 
organizational hierarchy illustrated in the chart that was provided in response to the RFE, the general 
description of the beneficiary's foreign employment precludes the AAO from being able to gauge the 
beneficiary's specific job duties. As such, the petitioner has not established that the duties primarily 
performed were of a qualifying nature. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
ground of ineligibility discussed above, this petition cannot be approved. 
Lastly, with regard to the petitioner's previously approved L-1 employment of the beneficiary, the 
AAO notes that each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof. As such, each petition must stand on its own individual merits. USCIS is 
not required to assume the burden of searching through previously provided evidence submitted in 
support of other petitions to determine the approvability of the petition at hand in the present matter. 
LIN 06 25 1 52707 
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The prior nonimmigrant approvals do not preclude USCIS from denying an extension petition. See 
e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The 
approval of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant 
petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after 
approving prior nonirnrnigrant 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 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, 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 USCIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
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 
nonirnmigrant 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.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd. 
345 F.3d 683. 
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 29 1 of the Act, 8 U.S.C. fj 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.