dismissed EB-1C Case: Technology Investment Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PITBTJTC COPY 
3rf 
- 7 
FILE: 
 Office: NEBRASKA SERVICE CENTER 
 Date: DC T Q 5 2009 
9 LIN 07 020 52440 
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. 9 1 153(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. $ 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 or reopen, as required by 8 C.F.R. 
 103.5(a)(l)(i). 
/ 
 Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a corporation incorporated in the State of Delaware that claims to be in the business 
of technology investment management. The petitioner claims to be a subsidiary of the beneficiary's 
foreign employer, Inala Technology Investments (Pty) Ltd., a South African company. It seeks to 
employ the beneficiary as its new business development 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 director denied the petition on April 2, 2008, concluding that the petitioner had not established 
that the beneficiary will be employed by the United States entity in a primarily managerial or 
executive capacity. 
The petitioner initially filed a Form I-290B, Notice of Appeal or Motion, on May 5, 2008, which 
was rejected by the U.S. Citizenship and Immigration Services (USCIS) on the grounds that the 
wrong Form I-290B was used. The petitioner filed another Form I-290B on May 14, 2008. On 
appeal, counsel for the petitioner contends that the beneficiary's proffered position in the United 
States is indeed "executive" or "managerial" in nature. Additional evidence was submitted in 
support of counsel's assertions on appeal. 
In a decision issued on July 31, 2008, the director noted that the petitioner's appeal was untimely 
filed. However, the petitioner's motion to reopen the proceedings was granted. Upon review of the 
record of proceedings, including the motion and its supporting documents, the director determined 
that the grounds for denial have not been overcome, and affirmed his previous decision. 
On August 29, 2008, the petitioner submitted a Form I-290B, appealing the director's July 3 1, 2008 
decision. Counsel for the petitioner again asserts that the director's determination that the 
beneficiary's position is not executive or managerial in nature is in error; the petitioner submits 
further evidence in support of this assertion. 
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, 
Page 3 
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. $ 204.5(j)(5). 
At issue in the present matter is whether the beneficiary would be employed in a primarily 
managerial or executive capacity by the United States entity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 8 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or 
function for which the employee has authority. A first line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(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 
hnction 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 a letter dated June 26, 2006 filed with the Form 1-140, Immigrant Petition for Alien Worker, the 
petitioner described the beneficiary's position in the United States as follows: 
[The beneficiary] has primary responsibility to seek out, negotiate, and manage 
investments and strategic partnerships for the entire company. Although [the 
petitioner] has only one employee in the U.S., [the beneficiary] directly manages 
accountants, attorneys, professional advisors, and engineers retained by [the 
petitioner] to qualify and acquire interests in a wide range of technology companies 
that fit the [company's] vision for growth. He reports directly to the board of 
directors of both [the U.S. and foreign companies]. [The beneficiary] recommends 
significant corporate actions to the Board and controls an essential function in 
locating and negotiating new business relationships. He builds strategic relationships 
with U.S. and international companies to advance [the company's] objectives. [He] 
controls daily communication with senior executives and professional personnel of 
[the company's] strategic partners. He has discretionary decision making authority 
including hiring and firing professional advisors. [The beneficiary] exercises his 
discretion over product design and development and key relationships with the 
management of strategic partners. 
On August 2, 2007, the director issued a request for further evidence (RFE) relating to the 
beneficiary's U.S. position, including: a copy of the petitioner's corporate tax return; 2006 Internal 
Revenue Service (IRS) Forms W-2 for the beneficiary and any other employee of the U.S. company; 
an organizational chart for the U.S. company showing the beneficiary's positions in relation to other 
employees within the company's corporate hierarchy; and a more detailed description of the 
beneficiary's duties that should indicate what specific actions the beneficiary is required to carry out 
in order to fulfill those duties. 
In a letter dated October 16, 2007 responding to the RFE, the petitioner added the following 
expanded description of the beneficiary's job responsibilities: 
[The beneficiary] builds strategic relationships with U.S. and international 
companies to advance [the company's] objectives. Specifically, he identifies and 
develops emergent business opportunities and negotiates favorable contracts for [the 
company's] services and expertise. [The beneficiary] investigates key industries for 
expansion opportunities. He nurtures business contacts with high level managers and 
executives to obtain introductions to potential client companies and referrals for [the 
petitioner's] services. He has developed strategic relationships with approximately 30 
U.S. companies which range in revenues from $1 million to $180 million. 
[The beneficiary] has discretionary decision making authority including hiring 
and firing professional advisors. He directs and manages the professionals retained 
by the company in the U.S. [The petitioner] currently has two Professional Advisors 
who are independent contractors and is seeking additional qualified candidates. 
These Professional Advisors evaluate management structures and procedures of client 
companies, analyze hiring and training procedures to maximize employee retention, 
and advise client companies on running their business to maximize profitability. [The 
beneficiary] has discretionary decision making authority, including hiring and firing 
of these Professional Advisors, determining which account they handle and their 
compensation. He evaluates their progress on accounts and provides guidance, 
direction and expertise in applying the [company's] business model to their client 
issues. In addition, he manages accountants, attorneys, engineers, and other 
professionals retained by [the petitioner.] 
[The beneficiary] controls daily communication with senior executives and 
professional personnel of [the petitioner's] strategic partners. [The petitioner's] 
client companies view [the petitioner] as a strategic partner for their businesses. [The 
beneficiary] approves strategies and solutions designed and developed by the 
Professional Advisors for client companies. These strategies and solutions are then 
communicated to senior executives and other professional personnel of [the 
petitioner's] client companies. 
[The beneficiary] exercises his discretion over product design and development 
and key relationships with the management of strategic partners. [The 
beneficiary] is the primary architect of [the petitioner's] proprietary business model. 
The strength of this business model is that it applies to a variety of companies and is 
not limited to one industry. [The beneficiary] evaluates the model's continued 
validity and directs the measurement of its success for client companies. He presides 
over design modifications to the business model to meet unique industry 
requirements. 
 For example, under [the beneficiary's] direction, the Professional 
Advisors have used this business model to facilitate the larger scale production of a 
client's products. To this end, they analyzed the value of the engineering component 
of the client company's product design and evaluated the manufacturing processes 
and options from prototype to production. The Professional Advisors worked with 
the client company to design the prototype, test it, and then found a manufacturer to 
manufacture the product without requiring the client company to maintain the product 
in inventory. The manufacturer ships directly from its factory to representatives and 
stores. This has resulted in a significant increase in profits for the client company. 
The petitioner submitted an organizational chart for the U.S. company which shows the beneficiary 
directly reporting to the company's CEO in South Afilca, and directly supervising two individuals 
identified as "Professional AdvisorIIndependent Contractor." Other than their names, no other 
information relating to the CEO and Professional Advisors was provided. 
The petitioner also submitted its IRS Form 1120, U.S. Corporation Income Tax Return, for the year 
2006, which reports that the company paid $93,616 in salaries and wages, less employment credits, 
for that year. The beneficiary's IRS Form W-2 for 2006 states that his wages for the year was 
$1 12,013.99. The petitioner did not provide Form W-2 for any other employee. 
On June 27, 2008, the director denied the petition, concluding that the petitioner had not established 
that the beneficiary will be employed by the U.S. entity in a primarily managerial or executive 
capacity. The director found that while some of the beneficiary's duties may be considered 
"executive" or "managerial," others are not. The director observed that functions such as business 
development, contract negotiation, and investigating expansion are closer to the duties of a 
marketing representative or sales person. The director also determined that the evidence does not 
clearly demonstrate that the beneficiary supervises subordinate personnel, since the beneficiary only 
supervised two contractors at the time of filing. 
In his first appeal brief dated May 5, 2008, counsel for the petitioner asserted that "the beneficiary's 
position is indeed 'executive' andlor 'managerial' in nature." Counsel claimed that the managerial 
nature of the beneficiary's position is confirmed by the descriptions of similar positions in the 
Department of Labor's Occupational Information Network (O*NET), the Department of Labor's 
Occupational Outlook Handbook (OOH) and Dictionary of Occupational Titles (DOT), and current 
advertisements for comparable positions. Counsel also challenged the director's finding that the 
beneficiary does not appear to be supervising subordinate employees, claiming that the beneficiary 
manages the two "professional advisors" as well as accountants, attorneys, engineers and other 
professionals. Counsel further contended that the regulations do not require that the beneficiary 
supervises subordinate employees. Moreover, counsel asserted, the beneficiary manages an 
"essential function" of the company and therefore qualifies as a function manager. Finally, counsel 
asserted that the USCIS had already adjudicated this issue in the petitioner's favor when it approved 
the beneficiary's initial petition and two subsequent extension petitions for L-1A status. 
Counsel submitted additional evidence in support of his arguments on appeal, including, among 
other things: an excerpt from O*NET describing the position of "marketing manager"; an excerpt 
from the OOH discussing the position of "Advertising, Marketing, Promotions, Public Relations, and 
Sales Managers"; and an excerpt from the DOT relating to the position of "Director, Research and 
Development." Counsel posited that these positions are similar to the beneficiary's proffered 
position and demonstrate that the beneficiary's position is managerial in nature. Counsel also 
submitted various job announcements published on the internet that counsel deemed to be 
comparable to the beneficiary's proposed position. 
In a decision issued on July 31, 2008, the director granted the petitioner's motion to reopen the 
proceedings, but concluded that the grounds for denial have not been overcome. In response to 
counsel's contention that the beneficiary supervises the contractors, the director observed that the 
beneficiary could not be considered to be directly managing the contract personnel, who would 
answer to their own company's chain of command rather than the beneficiary. With respect to 
counsel's assertion that the beneficiary qualifies as a function manager, the director noted that the 
beneficiary did not simply function at a high level in the petitioner's organizational hierarchy; rather, 
the beneficiary was the company's entire organizational hierarchy. The director further found that 
the job description from O*NET is quite vague and general in nature and does not conclusively 
demonstrate that the beneficiary's proffered position is a managerial position. The director also 
highlighted the lack of a subordinate staff for the beneficiary and noted that the duties listed under 
"Advertising, Marketing, Promotions, Public Relations, and Sales Managers" in the OOH job 
description indicate that an employee in that position would coordinate certain tasks in marketing 
and sales, thereby implying that there would be a subordinate staff to perform the tasks rather than 
the manager. With respect to counsel's claim that this petition should be granted based on the 
approval of previous L-1A petitions, the director noted that "the instant petition is not simply a 
readjudication of a previously-adjudicated petition" and that "each visa petition must be judged 
separately, based on its own merit." The director concluded that, based on the record of proceeding, 
the petitioner has not demonstrated that the beneficiary will be employed in the United States in an 
executive or managerial capacity and the petition must remain denied. 
In an appeal brief dated August 28, 2008, counsel for the petitioner asserts that the director's 
determination that the beneficiary's position is not executive or managerial in nature is in error and 
submits further evidence in support of this assertion. Counsel argues that managers are not required 
to manage employees under 8 C.F.R. 5 204.50')(2), and, in any event, the beneficiary qualifies as a 
manager through his supervision of the independent contractors. Counsel asserts that USCIS must 
take into account the reasonable needs of the company in its analysis of the beneficiary's eligibility. 
Alternatively, counsel argues, the beneficiary is managing the "new business development" function 
of the company and therefore qualifies as a function manger. Counsel asserts that the O*NET 
"Marketing Manager" job description equates that position to the beneficiary's proffered position, 
and demonstrates that the beneficiary is not a salesman as the director implied. In addition, counsel 
argues that there is nothing in the OOH description that says that all "Advertising, Marketing, 
Promotions, Public Relations, and Sales Managers" must have subordinate employees. Counsel 
argues that, viewed in its entirety, the beneficiary's position is indeed managerial in nature. Finally, 
counsel states that the two professional advisors have been hired as employees of the petitioner. 
Counsel submits the resumes of these two individuals as well as their employment contracts with the 
petitioner, dated in April and May 2008. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
establish that the beneficiary would be employed in the United States in a primarily executive or 
manageri a1 capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). The petitioner's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. 
Initially, the AAO notes counsel's submission on appeal of job descriptions fiom sources such as 
O*NET, the OOH and the DOT for marketing and business development management positions that 
counsel deems to be analogous to the beneficiary's position. While these job descriptions provide 
some insight into what may be the duties ascribable to persons occupying similar positions in a 
corporate hierarchy, generally, they do not describe the beneficiary's job duties, specifically. The 
beneficiary's actual job duties themselves reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Further, 
an employee will not be considered a manager simply because of his job title. As such, the AAO's 
analysis of the beneficiary's eligibility will be based on the description of the beneficiary's actual job 
responsibilities, as presented in the record, rather than on any generic equivalence of the proffered 
position. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1 101 (a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Here, the petitioner claimed that the beneficiary 
supervises the work of two "Professional Advisors," both independent contractors. In response to 
the RFE, the petitioner described in brief and provided an example of the work purportedly 
performed by these independent contractors. The petitioner explained that the beneficiary "has 
discretionary decision making authority, including hiring and firing of these Professional Advisors, 
determining which account they handle and their compensation," and "evaluates their progress on 
accounts and provides guidance, direction and expertise in applying the [company's] business model 
to their client issues." In addition, the petitioner claimed that the beneficiary also manages 
accountants, attorneys, engineers, and other professionals retained by the petitioner. 
However, other than the above discussion of the work of the Professional Advisors as it relates to the 
beneficiary's job responsibilities, the petitioner failed to provide any evidence of the petitioner's 
contractual relationship with the Professional Advisors, nor is there any evidence of the existence of 
the accountants, attorneys, engineers, and other professionals purportedly retained by the petitioner 
and supervised by the beneficiary. Specifically, it is noted that the record, including the petitioner's 
tax returns and financial statements, contains no documentation of any compensation paid for the 
services of any independent contractors. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So@, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). 
The AAO acknowledges that Statement 2 attached to the petitioner's IRS Form 1120 for 2006 
indicates that the petitioner paid commissions in the amount of $19,560, and a profit & loss 
statement for January 1 through October 31, 2007 shows that the petitioner paid $9,675 in 
commissions during that period. However, the recipients of these commissions were not identified. 
Further, even if the petitioner has established that these commissions were paid to the claimed 
"Professional Advisors" or other independent contractors, the record lacks evidence to demonstrate 
how and to what extent the persons so paid were performing the services of the U.S. company. 
The AAO also notes that, in July 2008, the petitioner submitted copies of the agreements 
documenting the petitioner's hiring of two Professional Advisors as of April and May 2008. 
However, 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). The employment agreements do not establish that 
there existed an employment or contractual relationship between the petitioner and the "Professional 
Advisors" or any other contracted professional at the time the petition was filed, nor does the record 
show that, at the time of filing, the petitioner had any employees under the beneficiary's 
management, such that the beneficiary can be considered a "personnel manager." 
The evidence of record is also insufficient to support counsel's claim on appeal that the beneficiary 
qualifies as a function manager. The term "function manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 
U.S.C. 5 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If 
a petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish 
a written job offer that clearly describes the duties to be performed in managing the essential 
function, i.e., identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. § 204.50)(5). Further, 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 "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 
Intn 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Here, counsel claims that the beneficiary qualifies as a function manager because he manages the 
"new business development" function of the company. The petitioner's initial description of that 
function includes "locating and negotiating new business relationships," "build[ingJ strategic 
relationships with U.S. and international companies," "daily communication with senior executives 
and professional personnel of [the company's] strategic partners," having "discretionary decision 
making authority including hiring and firing professional advisors" and "exercise[ing] his discretion 
over product design and development and key relationships with the management of strategic 
partners." The job description provided in response to the RFE suggests that the Professional 
Advisors perform the services or produce the work products required by client companies, and a 
significant portion of the beneficiary's time is devoted to the management of the Professional 
Advisors and their work product. However, as previously noted, the record does not reveal when 
and to what extent the Professional Advisors performed work for the U.S. company, nor does it 
confirm that there was in fact a contractual or employment relationship between the petitioner and 
the Professional Advisors at the time the petition was filed. Without sufficient evidence to 
demonstrate that the Professional Advisors actually perform work claimed, the record does not 
substantiate the petitioner's claim that the beneficiary manages the work of the Professional 
Advisors, and thereby manages the "new business development" function rather than performing the 
duties related to the function himself. 
Along with showing that the beneficiary performs the high-level responsibilities that are specified in 
the definitions of "executive capacity" and "managerial capacity," the petitioner must prove that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his 
or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 
144470 (9th Cir. July 30, 1991). Whether the beneficiary is a managerial or executive employee 
turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. To this end, it is also the 
petitioner's obligation to establish that the day-to-day non-managerial tasks of the function managed 
by the beneficiary as a "function manager" are performed by someone other than the beneficiary. 
Here, the petitioner has failed to establish any clear distinctions between the proposed qualifying and 
non-qualifying duties of the beneficiary. Specifically, the petitioner submitted no information to 
establish the portion of time the beneficiary actually performs or will perform the claimed 
managerial or executive duties. The petitioner explicitly stated in its June 26, 2006 letter that it has 
only one employee in the United States, namely the beneficiary. Further, as previously discussed, 
the record contains insufficient evidence to substantiate the petitioner's claim that there are 
independent contractors providing services to the company. Collectively, this brings into question 
how much of the beneficiary's time can actually be devoted to managerial or executive duties if there 
is no one else on staff to perform non-qualifying duties. As previously noted, 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 intn 1, 19 I&N Dec. at 604. The 
petitioner bears the burden of documenting what portion of the beneficiary's duties will be 
managerial or executive and what proportion will be non-managerial or non-executive. Republic of 
Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of these percentages, the record 
does not demonstrate that the beneficiary will function primarily as a manager or executive. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational 
manager or executive. See 8 101(a)(44)(C) of the Act, 8 U.S.C. 8 1 101(a)(44)(C). However, 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). At the time of filing, the petitioner claimed to have a gross annual 
income of $20 million "worldwide." The firm employed a single employee in the United States and 
did not submit evidence that it employed any subordinate staff who would perform the actual day-to- 
day, non-managerial operations of the company. Based on the petitioner's representations, it does 
not appear that the reasonable needs of the petitioning company might plausibly be met by the 
services of the beneficiary as its sole employee. Further, the reasonable needs of the petitioner serve 
only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or 
executive duties. The petitioner must still establish that the beneficiary is to be employed in the 
United States in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) 
and (B) or the Act. As discussed above, the petitioner has not established this essential element of 
eligibility. 
The AAO notes that counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th 
Cir. 1989), and Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the 
proposition that the small size of a petitioner will not, by itself, undermine a finding that a 
beneficiary will act in a primarily managerial or executive capacity. First, the AAO notes that 
counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in National Hand Tool Corp., where the Fifth Circuit Court of Appeals decided in favor of the 
legacy Immigration and Naturalization Service (INS), or Mars Jewelers, Inc., where the district 
court found in favor of the plaintiff. With respect to Mars Jewelers, the AAO is not bound to follow 
the published decision of a United States district court in matters arising within the same district. See 
Matter of K-S-, 20 I&N Dec. 71 5 (BIA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO, the analysis does not 
have to be followed as a matter of law. Id. at 719. 
In both National Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former 
INS should not place undue emphasis on the size of a petitioner's business operations in its review of 
an alien's claimed managerial or executive capacity. The AAO has long interpreted the regulations 
and statute to prohibit discrimination against small or medium-size businesses. However, consistent 
with both the statute and the holding of National Hand Tool Corp., the AAO has required the 
petitioner to establish that the beneficiary's position consists of primarily managerial or executive 
duties and that the petitioner will have sufficient personnel to relieve the beneficiary from 
performing operational and/or administrative tasks. Like the court in National Hand Tool Corp., we 
emphasize that our holding is based on the conclusion that the beneficiary is not primarily 
performing managerial duties; our decision does not rest on the size of the petitioning entity. 889 
F.2d at 1472, n.5. 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has 
failed to establish that the beneficiary would be employed in a primarily executive or managerial 
capacity in the United States. For that reason, the petition will be denied. 
Beyond the decision of the director, the AAO finds that the record is insufficient to establish that the 
beneficiary was employed by the foreign entity for at least one year prior to the filing of the petition, 
or to the beneficiary's entry into the United States, as required under section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. 5 204.5(j)(3)(1) requires the petitioner to demonstrate that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of such 
a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonirnmigrant, the alien was employed by the entity abroad for at least one year 
in a managerial or executive capacity. 
In its letter dated June 26, 2006, the petitioner stated that the beneficiary was employed by the parent 
company in South Africa as New Business Development Manager from 1999 until his transfer to the 
United States in 2001. The petitioner stated: 
In this capacity, [the beneficiary] was a primary architect of the company's approach 
to implementing its vision. He drafted and oversaw the strategic plans of the 
company, directing the professionals employed and retained by the company . . . and 
presented investment opportunities directly to its Board of Directors in consultation 
with the Managing Director, for direct Board decision. 
The record contains no other evidence relating to the beneficiary's position abroad. The AAO notes 
that the petitioner's statement regarding the duration of the beneficiary's employment by the foreign 
entity is corroborated by the beneficiary's Form G-325A, Biographic Information, filed in September 
2006, which states that the beneficiary was employed by the foreign entity from April 1999 through 
November 2001. However, absent further details regarding the beneficiary's job responsibilities or 
his position within the organizational hierarchy of the foreign entity during his overseas 
employment, the AAO is unable to determine whether the beneficiary in fact was employed by the 
foreign entity in a managerial or executive capacity, as required by the regulations. For this 
additional reason, the petition cannot be approved. 
Finally, the AAO acknowledges that USCIS has previously approved multiple L-1A petitions filed 
by the petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS approves prior nonimmigrant 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; Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103. Examining the consequences of 
an approved petition, there is a significant difference between a nonimmigrant L-1A visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 
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: $5 204 and 214 of the Act, 
8 U.S.C. 5s 1 154 and 1 184; see also 5 3 16 of the Act, 8 U.S.C. 5 1427. Because USCIS spends less 
time reviewing I- 129 nonimmigrant petitions than I- 140 immigrant petitions, some nonirnmigrant L- 
1A 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. 5 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L- 1 A petition's validity). Despite any number of previously approved petitions, USCIS does not 
have any authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. See section 291 of the Act. Based on the lack of required evidence of 
eligibility in the current record, the AAO finds that the director was justified in departing from the 
previous nonimrnigrant petition approvals by denying the instant petition. 
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). 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. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, 
that burden has not been met. Accordingly, the director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.