dismissed EB-1C Case: Travel Services

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. 
.--- 
~obert%.-~iemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation operating as a retail travel service. 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. 
3 1153(b)(l)(C), as a multinational executive or manager. The director determined that the beneficiary would 
not be employed in the United States in a managerial or executive capacity and denied the petition. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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 fonn 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 beneficiary would be employed in a managerial or 
executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in 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 10 l(a)(44)(B) of the Act, 8 U.S.C. 3 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 petition, the petitioner submitted a letter dated August 24, 2004, which provided the 
following description of the beneficiary's duties in the United States: 
[The beneficiary's] duties in the United States are primarily the same as those in Canada 
where he occupied the position of [plresident for more than 9 years. Since entering the 
United States . . . [the beneficiary] has performed his executive position as [plresident. He 
has come to function in his executive role with a focus on directing and managing all aspects 
of [the] day-to-day operations. [He] has direct responsibility for all personnel and operational 
functions. 
In the area of personnel management, [the beneficiary] exercises authority in regard to hiring, 
terminating, recruiting, training, delegating new assignments according to capabilities, 
preference, goals and remuneration. He is responsible for ensuring that subordinates under 
Page 4 
his responsibility follow operational, financial and corporate procedures. Functioning 
autonomously, [the beneficiary] is responsible for managing and directing all financials 
aspects of the United States operation. In addition, as [plresident, he is responsible for long- 
term strategic initiatives which include financial compliance issues. 
In summary, [the beneficiary] has autonomous control and exercises wide latitude and 
discretionary decision making in his capacity as [plresident. 
On May 9, 2005, the director issued a request for additional evidence (RFE) instructing the petitioner to 
explain how most of the beneficiary's duties fall within a managerial or executive capacity. The petitioner 
was asked to describe the job duties of the beneficiary's subordinates and to provide an organizational chart 
illustrating its staffing structure. 
Counsel provided a response dated July 27, 2005, which indicated that the beneficiary's direct subordinate is 
the company's general manager. The following statements were used to describe the beneficiary's U.S. job 
position: 
On average, the beneficiary typically allocates 80% of his time to executing 
executive/managerial functions. This includes analyzing the Florida market, establishing 
strategic planning goals, analyzing and establishing sales objectives and developing 
advertising and promotional strategies for the United States market. The beneficiary has full 
responsibility for the direction and coordination of all activities of the United States operation 
and is responsible for all planning, formulating and implementing of strategic, operational 
and administrative policies and procedures. 
The beneficiary's duties include conducting general administrative affairs for the company 
and acting as liaison and representative for the petitioner between the Canadian affiliate. The 
beneficiary has autonomous responsibility for developing, [sic] marketing strategies to 
service the United States affiliate. His role as [plresident requires significant commitment in 
[sic] engaging in long range planning and identifying business development opportunities in 
the United States. The beneficiary is required to direct all business activities of the petitioner, 
including the negotiation and execution of contracts on behalf of the petitioner. In his role as 
[plresident, the beneficiary is required to have a knowledge of general management 
procedures including corporate and administrative procedures. As [plresident the beneficiary 
brings with proven experience in operations management including budget and finance 
issues. 
In his role as [plresident, the beneficiary is responsible for exercising wide latitude and 
autonomous discretionary authority in entering into contracts on behalf of the petitioner. The 
beneficiary is responsible for managing and directing all financial aspects of the United States 
affiliate operation. This includes all related financial compliance issues. The beneficiary is 
also responsible for assessing organizational performance with a view to improving revenues. 
The beneficiary has discretionary authority over the day[-]to[-]day functions of the business 
with Eross annual revenues in excess of $800,000.00. This includes discretion and control 
- 
over the company's [gleneral [mlanager, Mr. 
m 
The beneficiary spends a significant portion of his time focusing on the direction and 
coordination of the company's marketing and developmental efforts. The beneficiary has 
significant responsibilities in the management of the petitioner. The beneficiary's 
responsibilities also include entering into contracts for the performance of services on behalf 
of the company. 
Although instructed to do so, the petitioner did not provide a copy of its organizational chart or discuss the job 
duties performed by the beneficiary's direct subordinate. Furthermore, while the petitioner claimed a total of 
three employees, it provided documentary evidence for only two employees. None of the documentation 
submitted in response to the RFE even remotely suggested that the petitioner employed anyone other than the 
beneficiary and the office manager. 
Accordingly, on August 12, 2005, the director denied the petition noting the lack of a job description for the 
beneficiary's subordinate employee as well as the lack of evidence showing that the petitioner has a third 
employee as claimed in Part 5, Item 2 of the Form 1-140. The director concluded that the petitioner failed to 
submit sufficient evidence to establish that the beneficiary would primarily perform qualifiing duties. 
On appeal, counsel asserts that the director abused his discretion by drawing an arbitrary conclusion that is 
contrary to the law. Counsel further asserts that the office manager's statement in support of the Form 1-140, 
the beneficiary's resume, the statement submitted in response to the RFE describing the beneficiary's duties, 
and the petitioner's tax information demonstrating that the beneficiary is functioning in an executive position. 
Counsel's argument, however, is without merit and is based on the assumption that merely claiming that the 
beneficiary would be employed in a qualifiing capacity is sufficient to establish this fact by a preponderance 
of the evidence. In applying the preponderance of the evidence standard, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is "probably true" or "more 
likely than not," the applicant or petitioner has satisfied the standard of proof. See US. v. Cardozo-Fonseca, 
480 U.S. 421 (1987) (defining "more likely than not" as a greater than 50 percent probability of something 
occurring). If, however, the director can articulate a material doubt, it is appropriate for the director to either 
request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, 
deny the application or petition. 
Contrary to counsel's statements on appeal, the petitioner has failed to "clearly outline and detail the primary 
duties of the beneficiary." Instead, the petitioner has submitted a vague job description repeating the statutory 
and regulatory language. However, 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. 1103 (E.D.N.Y. 1989), affd, 
905 F.2d 41 (2d. Cir. 1990). While the petitioner generally indicates that the beneficiary's discretionary 
authority fits the definition of managerial or executive capacity, these definitions are meant to serve only as 
guidelines to be applied to a specific list of duties, which the petitioner has failed to provide. For instance, 
there is no indication as to the duties involved in carrying out the responsibility of developing marketing 
strategies. The AAO can only assume that because the petitioner has no employees to perform marketing- 
related tasks, that the beneficiary would actually engage in carrying out this non-qualifying task. The 
petitioner also failed to specify how the beneficiary would direct the negotiation and execution of contracts. 
Again, in light of the petitioner's lack of a support staff, it is unclear who, if not the beneficiary, would meet 
with clients to negotiate and execute contracts. It is noted that an employee who primarily performs the tasks 
Page 6 
necessary to produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593,604 (Cornrn. 1988). 
In examining the executive or managerial capacity of the beneficiary, Citizenship and Immigration Services 
(CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.5(j)(5). As discussed 
above, the petitioner failed to provide a detailed description of the beneficiary's daily tasks. Moreover, the 
petitioner's claim regarding the beneficiary's employment capacity is primarily based on the beneficiary's 
claimed knowledge and on the claims of the beneficiary's subordinate, who happens to be the petitioner's only 
documented employee aside from the beneficiary himself. The AAO notes 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. Comrn. 1972)). 
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. The fact that an individual manages a small 
business does not necessarily establish eligibility for classification as a multinational manager or executive in 
a managerial or executive capacity within the meaning of section 101(a)(44) of the Act. The record does not 
establish that a majority of the beneficiary's duties will be primarily directing the management of the 
organization. Nor is there any evidence that the beneficiary will primarily supervise a subordinate staff of 
professional, managerial, or supervisory personnel. Rather, the record indicates that the petitioner lacks a 
sufficient support staff relieve to relieve the beneficiary from performing nonqualifying duties. The petitioner 
has not demonstrated that it has reached a level of organizational complexity wherein the hiringlfiring of 
personnel, discretionary decision-making, and setting company goals and policies constitute significant 
components of the duties performed on a day-to-day basis. As the petitioner has failed to provide sufficient 
documentary evidence to support its claims regarding the beneficiary's employment capacity, the AAO cannot 
conclude that the petitioner has shown by a preponderance of the evidence that the beneficiary would 
primarily perform managerial or executive duties. 
Additionally, though not directly addressed in the director's decision, the petitioner has failed to establish that 
the beneficiary was employed abroad for at least one out of three years prior to entering the United States as a 
nonimmigrant in a qualifying managerial or executive capacity pursuant to 8 C.F.R. 5 204.5(j)(3)(i)(B). As 
with the petitioner's description of the beneficiary's proposed duties, the general statements regarding the 
beneficiary's position abroad is comprised primarily of vague job responsibilities without any meaningful 
indication as to the beneficiary's daily tasks. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Furthermore, the regulation at 8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner is required to submit evidence 
that the prospective United States employer has been doing business for at least one year. 
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 and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
In the instant matter, the Form 1-140 was filed by the petitioner in September of 2004. Accordingly, the petitioner 
must establish that it was engaged in "the regular, systematic, and continuous" provision of its travel services 
since September of 2003. Id. Although the petitioner has submitted its corporate tax return for 2003, this 
Page 7 
document is not an accurate indicator of whether the petitioner provided its travel services on a "regular, 
systematic, and continuous" basis. Id. As the petitioner is a sales-oriented business, its sales invoices and the 
dates therein would determine the frequency of sales transactions. Although the petitioner has submitted a 
significant number of its sales invoices, none were dated prior to September of 2004. Therefore, the AAO cannot 
conclude that the petitioner was doing business for the one year period prior to filing its Form 1-140. 
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). Accordingly, based on the two additional grounds of ineligibility discussed 
above, this petition cannot be approved. 
As a final note, service records show the petitioner's previously approved L-1 employment of the beneficiary. 
With regard to the beneficiary's L-1 nonimrnigrant classification, it should be noted that, in general, given the 
permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny by CIS than 
nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See QQ 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. Q 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonirnrnigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cf. $9 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also 5 316 of the Act, 8 U.S.C. Q 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. 5 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-IA petition's validity). Because CIS spends less time reviewing Form 1-129 nonirnmigrant petitions than 
Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data 
Consulting, lnc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that CIS approves some petitions in error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The prior nonirnmigrant approvals do 
not preclude CIS 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 nonirnmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS 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 at 22; Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory 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, 
Page 8 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Cornm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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. Lauisiana 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 she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 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 291 of the Act, 8 U.S.C. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.