dismissed EB-1C Case: Telecommunications

identifying data deleted to 
prevent clearly unwarr~ted 
invasion of personal pnvacy 
PUBLIC COpy 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529,2090 
u.s. Citizenship 
and Immigration 
Services 
NEBRASKA SERVICE CENTER Date: JAN 1 9 2011 
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 USc. § I IS3(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case, All of the documents 
related to this matter have been returned to the office that originally decided your case, Please be advised that 
any further inquiry that you might have concerning your case must be made to that office, 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § !O3,5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103,5(a)(1)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 California. The petitioner seeks to 
employ the beneficiary as its president and chief executive officer. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(\)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § I I 53(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition based on the determination that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a managerial or executive capacity. On appeal, 
counsel disputes the adverse decision and submits a statement to overcome 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 I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that IS 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The primary issue in this proceeding is whether the record contains sufficient evidence to establish that the 
beneficiary would be employed by the U.S. petitioner in a qualifying managerial or executive capacity. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § I IOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III which the 
employee primarily--
Page 3 
(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)(8) ofthe Act, 8 U.S.C. § 1 101 (a)(44)(8), 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, interim director, submitted a list of the beneficiary's 
responsibilities with the petitioning entity in his proposed position. The list indicates that the beneficiary 
makes a wide range of decisions regarding new business opportunities, improving operations, and increasing 
profitability of the business; confers with the administration and finance manager in managing the company's 
economic policies and reducing liabilities; attends meetings and negotiates with prospective client companies; 
formulates marketing plans to help sell the petitioner's products and services; directs and supervises 
productivity through senior managers and department heads; checks monthly reports provided by the 
operations departments; oversees the work of engineering managers; and makes plans and recommendations 
for training of engineering personnel. 
On December 4, 2008, the director issued a request for additional evidence (RFE). The director pointed out 
that only one employee was claimed on the Form 1-140 and questioned the validity of a prior statement, 
Page 4 
which indicated that the beneficiary intended to hire a support staff upon his arrival in the United States. The 
petitioner was asked to provide an organizational chart establishing that the U.S. entity has a subordinate staff 
to relieve the beneficiary from having to primarily perform non-qualifying tasks. The petitioner was also 
asked to provide payroll documentation as evidence of wages paid to a support staff as well as a description 
of the job duties performed by each staff member. 
In response, the petitioner provided an organizational chart that depicted a heavily staffed entity with mUltiple 
tiers of managerial and professional employees. The chart shows two managerial employees and an engineer 
as the beneficiary's direct subordinates. Each manager is shown as having a team of subordinates. The 
company units administrative depicted as overseeing f~ing 
contractor, and two outsourced receptionists. The business units general manager~is 
depicted as overseeing a team of engineers, three directors, and outsourced staff. The organizational chart 
was acco~RS Form W-2s--{)ne issued to the beneficiary in the amount of$32,500 and the other 
issued to _n the amount of $6,666. 
After reviewing the submitted documentation, the director determined that the petitioner failed to establish 
eligibility and therefore issued a decision dated March 4, 2009 denying the petition. Noting that the petitioner 
submitted only two 2008 Form W-2s, one of which indicated that the beneficiary's subordinate was only on 
the petitioner's payroll for a limited portion of 2008, the director found that the submitted evidence suggested 
an overall lack of an adequate support staff to relieve the beneficiary from having to primarily perform non­
qualifying tasks. The director also reviewed the list of duties and responsibilities attributed to the 
beneficiary's subordinate, pointing out that none of the items on the list include providing the services of a 
telecommunications company. In light of this observation, the director questioned who, if not the beneficiary 
himself, is providing the services offered by the petitioner. 
On appeal, counsel asks the AAO to review the organizational chart that was provided in its response to the 
RFE, asserting that the chart identified an extensive staff available to perform non-executive job duties. 
Counsel contends that the chart included non-U.S. employees who relieve the beneficiary from having to 
primarily perform non-qualifying tasks. Counsel explains that the petitioner did not provide evidence of 
wages for any of the non-U.S. employees because such information was not specifically requested in the RFE. 
Counsel argues that the director should have considered both the U.S. and foreign support staff in order to 
determine the extent of the beneficiary's involvement in the performance of non-qualifying tasks. 
Counsel in effect asks the AAO to treat the U.S. and foreign entities as a single entity based on their parent­
subsidiary relationship. Contrary to counsel's reasoning, the U.S. entity must establish its own eligibility at 
the time of filing the petition. While the petitioner is free to employ the foreign entity's work force to assist in 
providing various types of services, such employment must be documented. In other words, the petitioner 
and its foreign parent are two separate entities. As such, if the petitioner chooses to utilize the foreign entity's 
human resources, the record must establish that the petitioner has paid for such services much like it would 
pay for any services that are provided by outside contractors whom the petitioner does not employ in-house. 
The mere fact that the foreign entity and the petitioner have a parent-subsidiary relationship does not mean 
that the foreign entity's work force is considered as being part of the petitioner's organizational hierarchy. If 
the AAO were to accept counsel's reasoning, any petitioner would be able to bolster a deficient organizational 
hierarchy merely by claiming that the employees of the foreign entity provide services to the U.S. counterpart. 
Such claims could never be verified, as there would be no documented transactions to corroborate the 
commingling of labor between the two entities. 
Page 5 
In the present matter, the petitioner has provided no documentary evidence to establish that it paid for the 
services that are purportedly being rendered by individuals whom the petitioner does not directly employ. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As such, counsel's mere claim that 
the beneficiary is relieved of having to primarily perform non-qualifying tasks by a foreign support staff is 
insufficient, as there is no evidence to corroborate this claim. The AAO also rejects counsel's explanation that 
the petitioner did not provide evidence of wages paid to the foreign workers because such documentation was 
not expressly requested in the RFE. The director provided sufficient information in the RFE to explain the 
basis for requesting the petitioner's organizational chart. The director was also clear in instructing the 
petitioner to provide an organizational chart that shows "all current filled positions in your company." By 
virtue of the fact that the foreign employees are not employees of "your company," including them as part of 
the petitioner's organizational hierarchy was misleading, as there is no way to establish that the foreign labor 
either accounts for positions filled in-house by the petitioning organization or that the foreign labor is being 
contracted by the petitioner to provide services. 
Thus, the record as presently constituted indicates that the petitioner had only one employee---the beneficiary 
himself-at the time the Form 1-140 was filed. The director was therefore correct in questioning the 
petitioner on this point and instructing the petitioner to provide evidence establishing who relieves the 
beneficiary from having to perform its daily operational tasks that are not within a qualifying managerial or 
executive capacity. The AAO notes that in reviewing the relevance of the number of employees a petitioner 
has, federal courts have generally agreed that USClS "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 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic ofTranskei 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 curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
Accordingly, while U.S. Citizenship and Immigration Services (USClS) generally places great emphasis on 
the beneficiary'S description of job duties in determining whether the proposed employment is within a 
qualifying managerial or executive capacity, the AAO finds that merely providing a detailed job description, 
even one that primarily attributes qualifying tasks to the beneficiary, is meaningless if the organization that 
seeks to hire the beneficiary does not have the human resources to relieve the beneficiary from having to 
primarily perform non-qualifying operational job duties. That being said, the job description offered by the 
petitioner in the present matter consists primarily of vague job responsibilities and thus fails to convey a 
meaningful understanding of exactly what the beneficiary will be doing on a daily basis and how much of his 
time would be spent on qualifying tasks versus the non-qualifying ones. 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. See 8 C.F.R. § 204.5Gl(5). Here, the deficient job 
description offered by the petitioner does not specify the beneficiary'S actual tasks and thus leaves the AAO 
without any insight as to the beneficiary's specific role within the petitioner's organization. It is noted that the 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. As discussed above, a detailed description of the 
job duties is a key factor in determining the beneficiary's employment capacity in his proposed position with 
the U.S. entity. This infonnation is then considered in light of the petitioner's organizational hierarchy, which 
is another key component in detennining the petitioner's eligibility. In the present matter, the record lacks a 
comprehensive description of the beneficiary's day-to-day tasks and does not adequately establish the 
availability of support personnel who would perfonn the petitioner's daily operational tasks such that the 
beneficiary would be able to primarily focus on the performance of managerial or executive duties. 
Therefore, based on the evidence furnished, the AAO cannot conclude that the beneficiary would be 
employed primarily in a qualifying managerial or executive capacity. For this reason, the petition may not be 
approved. 
Additionally, the AAO notes that the petitioner must establish that it has been doing business for at least one 
year prior to filing the Fonn 1-140. The regulation at 8 C.F.R. § 204.50)(2) states that doing business means 
"the regular, systematic, and continuous provision of goods and/or services by a finn, corporation, or other entity 
and does not include the mere presence of an agent or office." Although this issue was not addressed in the 
director's decision, the AAO finds that the petitioner failed to provide sufficient evidence to show that it meets 
the initial filing requirement specified at 8 C.F.R. § 204.5(j)(3)(i)(D). 
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 (ED. Cal. 2001), afJ'd, 345 FJd 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 FJd 143, 145 (3d Cir. 2004)(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. 
As a final note, counsel makes several references to the petitioner's current approved L-I employment of the 
beneficiary. With regard to the beneficiary's L-I nonimmigrant classification, it should be noted 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 detennine the 
approvability of the petition at hand in the present matter. 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 nonimmigrant 1-129 L-I petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; lKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (DD.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthennore, 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 nonimmigrant petitions on behalf 
Page 7 
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). 
Regardless, 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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.