dismissed EB-1C Case: Travel Agency

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US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 07 13 1 52565 MAY 0 6 2010 
IN RE: 
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. 5 103.5 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. 5 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
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 Nevada that operates a travel agency. It 
seeks to employ the beneficiary as its 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. 5 11 53(b)(l)(C), as a multinational executive or manager. The director 
denied the petition based on the conclusion that the petitioner failed to establish that it would employ the 
beneficiary in a managerial or executive capacity. 
On appeal, counsel presents an appellate brief disputing the director's conclusion. Counsel points out that the 
beneficiary was previously approved for status as an L-1A nonimmigrant intracompany transferee. 
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 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 petitioner 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 1 10 1 (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 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 written job offer dated December 18,2006 which was 
accompanied by the following list of the beneficiary's responsibilities in his proposed employment: 
Development and implementation of the company's primary business objectives as defined 
in the Business development Plan 
Creation and management of the top-line financial budget for the company 
Management, appraisal and discipline of staff in line with company policy 
Liaison and co-ordination with key suppliers, partners and other sales agents 
Arrangement of business licensing and required bonding with relevant City and State 
Authorities 
Procuring Joint Venture Partners for new product development 
Development and implementation of the company's sales and marketing plan 
Ensuring the company is adequately financed to achieve it's [sic] primary business 
objectives 
Development of Operational Management Plans for all new tour and events marketed by 
[the petitioner]. 
Additionally, the petitioner assigned the following time allocations to the beneficiary's primary 
responsibilities: 15% to financial analysis and reporting; 20% to building, managing, and expanding the U.S. 
operation; 25% to sales and marketing; 10% to research and development; and 30% to operational 
management.' The petitioner also described the beneficiary as having the top-most position within the 
company, exercising complete executive authority over strategy, budgets, personnel, and events and tours. 
On July 11, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a detailed description of the beneficiary's proposed day-to-day duties with a percentage of time 
assigned to each duty. The petitioner was also instructed to provide its organizational chart. 
In response, the petitioner resubmitted the previously provided job descriptions and included no supplemental 
information about the beneficiary's proposed employment despite the director's express request for a more 
detailed job description. 
The petitioner also provided a staff list as well as a separate organizational chart, which depicts the 
beneficiary as head of the organization in his position as president. The position of treasurer is depicted at the 
same level within the hierarchy with no subordinate employees. The beneficiary's position is shown as 
having two subordinate positions-a sales and marketing manager, a position that the beneficiary holds, and 
operations manager, a position that is filled by the same individual that holds the position of treasurer. The 
sales and marketing manager is shown as overseeing a webmasterldesigner and an administration person, 
while the operations manager is shown as overseeing two tour guide supervisors, who oversee five tour 
guides. 
In a decision dated February 27, 2009, the director denied the petition, concluding that the beneficiary would 
be primarily performing non-qualifying tasks. The director reviewed the information conveyed in the 
' As the director's denial includes the complete percentage breakdown provided in support of the petition, the AAO need 
not repeat this information in the present decision. 
petitioner's organizational chart and restated the proposed job responsibilities that were accompanied by time 
allocations, indicating how much time was attributed to each of the beneficiary's nine job responsibilities.2 
On appeal, counsel provides a brief explaining how the petitioning entity operates from the point of sale to the 
delivery of the product, i.e., the touring packages customized by the petitioner. Counsel explains the role that 
the sales personnel plays in the petitioner's product delivery, stressing that any contact with customers is 
handled by the receptionist, a supervisory tour guide, or the operations manager. The AAO notes, however, 
that going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In the present matter, the petitioner indicated at Part 5, Item 2 of the Form 1-140, that it had five employees at 
the time of filing. However, it is unclear which five employees it had and which positions were filled. While 
the AAO acknowledges that the petitioner complied with the director's RFE request when it submitted an 
organizational chart reflecting its staffing structure for 2008, a petitioner must establish eligibility at the time 
of filing the petition; 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). Therefore, while it 
is important to satisfy the director's request, it is equally as important to inform U.S. Citizenship and 
Immigration Services (USCIS) whom the petitioner employed at the time of filing. Without this information 
USCIS is unable to gauge whom the petitioner had available to perform its daily operational tasks and 
whether the petitioner was adequately staffed such that the beneficiary would be relieved from having to 
primarily perform those tasks himself. 
In the present matter, the organizational chart that was submitted in response to the RFE listed 13 positions. 
It is clear, based on the information provided by the petitioner in the Form 1-140, that it did not employ 13 
individuals at the time of filing. It is therefore germane for the petitioner to establish which five employees 
were part of the petitioner's organization at the time of filing and which positions those employees filled. The 
petitioner would then need to explain how its staffing structure at the time of filing was sufficient to relieve 
the beneficiary from having to primarily perform non-qualifying tasks. As properly noted by the director, 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 International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The other element that is equally important in meeting the relevant statutory definition of managerial or 
executive capacity is a detailed job description, which the regulation at 8 C.F.R. 5 204.5@(5) expressly 
requires. Precedent case law also stresses the utmost importance of a detailed job description, determining 
that the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aj'd, 905 F.2d 41 (2d. Cir. 1990). 
The director also restated the list of beneficiary's job responsibilities with the foreign entity and attributed those 
elements to the beneficiary's proposed employment. While the AAO acknowledges this error on the part of the director, 
the beneficiary's foreign job description was not the basis for the director's conclusion and therefore not crucial to the 
determination of the petitioner's eligibility. 
Page 6 
In the present matter, the director indicated that the job description that the petitioner initially submitted in 
support of the Form 1-140 lacked sufficient detail with regard to the beneficiary's specific tasks. As such, the 
director specifically addressed this point in the RFE by instructing the petitioner to expand on the initial job 
description by describing the beneficiary's job duties "in much greater detail." The petitioner was expressly 
asked to list specific day-to-day tasks that would explain how the beneficiary would carry out the job duties 
listed in the initial job description. However, as previously stated, the petitioner failed to comply with the 
director's request and instead submitted a replica of the job description that had been previously deemed 
insufficient. 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). 
In reviewing the job description provided by the petitioner, the AAO finds that a denial of the petition was 
warranted and that the director's decision need not be overturned. Although the job description establishes the 
beneficiary's high degree of discretionary authority, it does not explain what specific tasks the beneficiary has 
performed or would perform on a daily basis in order to meet the list of general responsibilities that are 
assigned to his position with the U.S. entity. For instance, the petitioner indicated that 15% of the 
beneficiary's time would be allocated to formulating a financial plan and expense budget, another 20% would 
be allocated to developing a strategy and business plan regarding the petitioner's finances, personnel, and 
operations, and 30% would be allocated to developing operational plans for managing tours and events, 
ensuring that health and safety requirements are met, managing company vehicle maintenance, producing 
legal documents, and providing staff training. Cumulatively, these responsibilities would consume 65% of 
the beneficiary's time. However, the petitioner provided no detailed information to clarify what specific tasks 
the beneficiary would perform daily or by what specific means the beneficiary intended to meet these general 
goals and business objectives. In other words, it is entirely unclear whether or not or to what extent the 
beneficiary would be required to carry out daily operational tasks in order to meet these goals and objectives. 
Moreover, the petitioner indicated that the beneficiary would spend 25% of his time in contract negotiations 
and personally meeting with suppliers, clients, and investors and another 10% of his time conducting market 
research, none of which can be deemed as tasks that are within a qualifying managerial or executive capacity. 
Accordingly, in light of the analysis provided above, the AAO cannot conclude that the petitioner has 
persuasively established that the beneficiary would primarily perform qualifying tasks or that the petitioner 
has reached a stage in its development that would warrant the employment of an individual who primarily 
performs tasks within a qualifying capacity. As such, the instant petition cannot be approved. 
Lastly, with regard to counsel's reliance on the petitioner's previously approved L-1 employment of the 
beneficiary, the presumption that the prior approvals establish a prima facie case of eligibility in the present 
matter is incorrect. Despite the implication of counsel's argument, each nonimmigrant and immigrant petition 
is a separate record of proceeding with a separate burden of prooc 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. 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 
nonimmigrant 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 approvals 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 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. 5 1 (2001). 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.5(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. Much like the issue of the 
beneficiary's job description for the proposed employment, the director's RFE expressly instructed the 
petitioner to provide a more detailed analysis of the beneficiary's daily activities during his employment 
abroad. However, the petitioner merely resubmitted the job description that had been initially provided in 
support of the Form 1-140. As stated earlier, 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). As the petitioner failed to 
provide the necessary information that would explain clearly what tasks the beneficiary performed during his 
employment abroad, the AAO cannot conclude that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity. 
Second, 8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.5(j)(2) states that 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." In the present matter, 
the petitioner states in its Form 1-140 that it provides travel and tour services. However, the record lacks 
evidence to establish that the petitioner had been selling travel and tour services on a "regular, systematic, and 
continuous" basis. See id. While the AAO acknowledges the petitioner's submission of various tax documents, 
such documents do not show the frequency of the petitioner's sales transactions and are therefore insufficient 
for the purpose of establishing that the petitioner was doing business in the time and manner prescribed. 
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), afld, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
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. 9 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.