dismissed EB-1C Case: Wholesale And Retail Trade

V.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
PUBLIC COpy
u.s.Citizenship
and Immigration
Services
SRC 06241 51641
Date: SEP 2 5 2001
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe 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.
~..
7-RObertP~
Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or
executive pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ I 153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Hawaii that is
engaged in the wholesale and retail sale, and import and export of clothing, jewelry, and accessories. The
petitioner represents itself as an affiliate of the beneficiary's foreign employer, and seeks to employ the
beneficiary as its executive manager.
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary
would be employed by the United States entity in a primarily managerial or executive capacity.
On appeal, counsel for the petitioner contends that the beneficiary qualifies for classification as a
multinational manager or executive based on his proposed employment in an "executive management
position." Counsel challenges the director's finding that the beneficiary would provide the petitioner's
"supervisory and operational services" and perform "tasks associated with the daily operation of the
company." Counsel submits a brief in support of the appeal.
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 or 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, 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.
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The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a
primarily managerial or executive capacity.
Section lOl(a)(44)(A) ofthe Act, 8 U.S.c. § 1101(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
subdivisionof the organization;
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions
(such as promotion and leave authorization) if another employee or other employees are directly
supervised; if no other employee is directly supervised, functions at a senior level within the
organizationalhierarchy 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 lOl(a)(44)(B) of the Act, 8 U.S.c. § lIOI(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) Establishesthe goals and policies of the organization, component, or function;
(iii) Exercises wide latitude in discretionarydecision-making;and
(iv) Receives only general supervision or direction from higher level executives, the board of
directors,or stockholdersof the organization.
The petitioner filed the Form 1-140 on August 9, 2006 noting the beneficiary's proposed employment as the
company's executive manager. The petitioner indicated on the petition that it employed three full-time and
two part-time employees. In an appended letter, dated July 24, 2006, counsel provided the following
description of the beneficiary's proposed employment:
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As the business executive, [the beneficiary] seeks out and brings in new business/client[s]
and promotes repeat customers, through his keen influence in customer relations and skills
in business administration. [The beneficiary] knows and utilizes his knowledge of product
trends to enhance the business and is knowledgeable of the products and experienced in
foreign trade as well as the wholesale business. (The beneficiary] is the key person in the
business marketing strategy and directs the sales team regarding potential customer
relations, satisfaction and retention. [The beneficiary] continually communicates with
Chinese and Hong Kong suppliers and has been sourcing more business and venders
throughout Europe, traveling abroad frequently in the course of his business activities.
[The beneficiary] uses his excellent business acumen to monitor and control supplier
activities, which ensures quality and value for their products. His excellent business and
marketing skills have enabled the company to become stable and active in the market.
Hence, his skills are critical to the operations. [The beneficiary] is responsible for the
following business activities:
• In charge of U.S. sales and the Western Europe market.
• Performs as a buyer for the company from suppliers in China and Hong Kong.
• Communicates with customers in the U.S. and Europe.
• Communicates with various suppliers and offices in China and Hong Kong, frequently
traveling to visit customers in the U.S. and Europe.
• Frequently travels to China and Hong Kong to book new orders, check production and
develop new products with the suppliers.
• Visits trade shows in Asia, Europe and the U.S.
• Works closely with customers to organizations [sic] new collections for new seasons
and new trends.
• Works with the personal bankers regarding company financial issues.
• Works with the (certified public accountant] on issues and to monitor the company's
financial status.
• Works with customers and suppliers in the office.
• Uses business connections to source for new products and suppliers.
• Researches the markets for potential customers and to procure important accounts.
• Authorizes payments to suppliers.
• Uses his import and export experience to control shipping lines and forwarding agents.
• Locates sources to fill quotas for the U.S. and Europe shipments.
• Participates in various activities of the local Chamber of Commerce as a member.
• Seeks more suitable locations for products locally(.]
• Negotiates with agencies for potential markets(.]
• In charge of marketingladvertising[.]
• Monitors office management[.]
In the same letter, counsel provided an outline of the beneficiary's "business and travel activities in 2004 and
2005," which included attending trade exhibitions, working with sales and staff members, and traveling
overseas to meet with customers. Counsel stated that the beneficiary is the petitioner's "ultimate decision­
maker," who performs "executive management functions," supervises lower-level management, "exercises
ultimate control" over finances, and enters into contracts for the benefit of the company.
Page 5
As additional evidence, counsel submitted a list of employees in the United States company, which included:
the beneficiary as president; a sales manager; a sales representative; a part-time office executive; and a part­
time marketing coordinator. Included on the list was a brief description of the tasks performed by each
worker. The AAO notes in particular that the sales manager was identified as servicing customers in the
North American and Canadian markets only, while the sales representative was responsible for providing
sales services to customers in Hawaii. Neither was represented as being responsible for the sales realized by
the petitioner in such countries as the United Kingdom, Belgium, China, and Italy, which are identified on a
large portion of the sample sales invoices, packing lists, and bills oflading submitted by the petitioner.
On November 30, 2006, the director issued a request for evidence directing the petitioner to submit the
following information pertaining to the beneficiary's proposed employment in the United States: (1) a more
specific job description, including a list of the beneficiary's day-to-day job duties and the percentage of time
devoted to the perfonnance of each task; (2) copies of the petitioner's 2006 state and quarterly wage reports;
and (3) if appropriate, documentary evidence of the petitioner's use of contracted workers.
Counsel responded in a letter dated February 5, 2007, in which she restated the above offered list ofjob duties
and the job description related to the beneficiary's proposed employment as executive manager. In appended
documentation, counsel provided the following description ofthe beneficiary's "typical day":
Morning activities:
• 10 minutes briefing, about anything [that] happened yesterday and possible occurrences
of today. 2%
• Talking with [the office executive] about the upcoming appointment today. 2%
• Assigning [the office executive's] bank visiting. 2%
• Talking with [the sales manager] and [sales representative]. 12%
• Looking into e[-]mails and giving replies. 12%
• Meeting with visiting customer in the office. 10%
• Noontime coffee break with customer at Starbucks Cafe. 10%
Afternoon activities: Returning to the office.
• Talking with [the marketing coordinator] about any messages during his absence. 2.5%
• Signing checks, singing [sic] orders to the factories in China. 2.5%
• Planning upcoming business trips. 15%
• Assigning needed travel booking to the office executive. 2.5%
• Looking into order details and authorizing for placing orders. 15%
• Listening to reminding of tomorrow's appointment from [the marketing coordinator].
2.5%
• Conference call with colleagues from mother company in China. 10%
• Off duty.
In an additional list, the beneficiary's job responsibilities were outlined as follows:
• In charge of sales to U.S. and Western Europe market.
• Find new supplier in Hongkong [sic] and China.
• Develop new items for the customers with various suppliers.
• Sourcing for the new products and new suppliers.
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• In charge of buying from China and Hongkong [sic].
• Communicate with customers in U.S. and Western Europe. 40% of time spent.
• Communicate with suppliers and the mother company in China. 25% of time spent.
• Discuss with [chief financial officer] for [sic] company accounting issues. 5% of time
spent.
• Meet with customers in the office. 5% of time spent.
• Meet with suppliers from Hongkong [sic] and China. 1% of time spent.
• Discuss with [the sales manager] of his responsible market and provide help if needed.
15% of time spent.
• Discuss with [office manager] of daily office management. 4% of time spent.
• Involved in business with local Chamber of Commerce.
• Attend trade shows in U.S. Frequency depends on show type and company needs.
• Visit trade shows in U.S. and Europe and Asia. Frequency depends on show type and
company needs.
Re: percentage oftime spent, please see specific indication above. For other duties without
specific time indication, total time spent is 5%.
Counsel also submitted a brief list of job duties performed by each of the four subordinate workers. An
attached organizational chart depicted the five-person organizational hierarchy of the petitioning entity, and
the petitioner's third quarter state wage report confirmed the full-time employment of the beneficiary, sales
manager, and sales representative, as well as the part-time employment of the office executive and marketing
coordinator.
In a decision dated February 21, 2007, the director concluded that the petitioner had not established that the
beneficiary would be employed in a primarily managerial or executive capacity. The director stated that the
job description initially offered for the beneficiary's employment was "very general" and comprised of "a
wide range of duties" that appeared to be non-managerial and non-executive in nature. The director noted that
the petitioner offered the same job description in its response to the director's request for evidence. The
director instructed that employment as a manager or executive required that the beneficiary "plan, organize,
direct, and control an organization's major functions and work through other employees to achieve the
organization's goals," as well as that the majority of the beneficiary's duties relate to operational or policy
management, not the performance of "operational activities of the company." The director concluded that
many of the beneficiary's job duties appeared to be "typical of an employee providing supervisory and
operational services to the petitioner as well as tasks associated with the daily operation of the company."
Consequently, the director denied the petition.
Counsel for the petitioner filed a timely appeal on March 19, 2007. In an attached appellate brief, dated
March 14, 2007, counsel states that the beneficiary possesses "the highest level of authority for the U.S.
business," which encompasses such responsibilities as "monitoring its management, developing marketing
strategies and promoting the business domestically and abroad." As evidence of the beneficiary's "executive
functions," counsel restates the original list of job duties outlined in her July 24, 2006 letter. Counsel
challenges the director's finding that the beneficiary's duties resemble those performed by "an employee
providing supervisory or operations services to the petitioner as well as tasks associated with the daily
operation ofthe company," stating that as the sole owner of the petitioner and a majority owner of the foreign
entity, the beneficiary's "executive capacity routinely requires him to travel abroad." Counsel states:
Page 7
[The beneficiary] perfonns his executive functions in a variety of ways. When not abroad,
he holds daily briefings with his management staff to remain abreast of the company's daily
operations to convey vital information with respect to financial goals, products,
customer/public relations, etc. He also holds individual discussions with staff according
pertaining [sic] to their specific functions, providing and receiving updates from each.
Later, [the beneficiary] addresses other executive issues using various methods, e.g.,
telephone/conference calls, email, and meetings with customers/suppliers, etc. at lunches
and/or over coffee at Star Bucks. Other functions performed by [the beneficiary] within the
U.S. investment business include approving expenses and distributing funds, planning
travel strategies, entering into contracts, and communicating in an executive capacity with
the Japan Corporation, to name a few. Given the executive nature of his functions, his
activities vary from day-to-day, week-to-week, according to specific business needs, with
the overall objective geared toward ensuring the efficacy of the business operations, which
in turn protects his 'at risk' investment.
[The beneficiary] seeks out and·brings in new suppliers, clients, retailers and wholesalers,
using his excellent public relations (PR) skills as well as his expertise in product trends, to
optimize profits. PR/networking are key marketing strategies for businesses, and [the
beneficiary] is continually involved in PR functions with Chinese and Hong Kong suppliers
and sources business and venders internationally. It is through these executive functions
that the company had become stable and active in the market.
Counsel contends that, reviewed in its entirety, the record of proceeding demonstrates that the beneficiary
would be employed in an "executive management position," and that he would not perform the daily
operations of the business.
Upon review, the petitioner has not established that the beneficiary would be employed by the United States
entity in a primarily managerial or executive capacity.
The petitioner does not clarify whether the beneficiary would be primarily engaged in managerial duties
under section 101(a)(44)(A) of the Act, or primarily executive duties under section 10I(a)(44)(B) of the Act.
Counsel repeatedly refers to the beneficiary's employment in an "executive management" position. A
petitioner must clearly describe the duties to be perfonned by the beneficiary and indicate whether such duties
are either in an executive or managerial capacity. A petitioner may not claim to employ a beneficiary as a
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner
chooses to represent the beneficiary as both an executive and a manager, it must establish that the beneficiary
meets each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5).
The job descriptions offered by counsel corroborate the director's finding that the beneficiary would perform
primarily non-managerial and non-executive tasks related to the sale of the petitioner's products. Based on
the initial job description submitted by counsel, the beneficiary would perform such day-to-day non­
qualifying tasks as: communicating and traveling abroad to personally meet with overseas suppliers and
Page 8
customers; acting as the petitioner's buyer in the purchase of its products; determining "new orders"; checking
production status; "develop[ing] new products with the suppliers"; organizing new collections with
customers; attending trade shows in Europe, Asia and the United States; meeting with suppliers and
customers in the United States office; researching markets to locate new customers; "[controlling] shipping
lines and forwarding agents"; and "locat[ing] sources to fill quotas for the U.S. and [European] shipments".
In response to the director's request for evidence, counsel confirmed the beneficiary's performance of these
primarily non-managerial and non-executive tasks, and further represented on a separate list that at least 71
percent of the beneficiary's time would be devoted to such operational tasks as communicating and meeting
with customers and suppliers, which are not typically deemed to be managerial or executive in nature. See
§§ 101(a)(44)(A) and (B) of the Act. In contrast, the beneficiary would spend only 19 percent of his time
supervising or discussing issues with the subordinate staff. Based on these claims, the time spent by the
beneficiary performing tasks related to the day-to-day sale of the petitioner's products is significantly more
than the time devoted to supervising his lower-level staff, and demonstrates that the beneficiary's proposed
employment would not be primarily managerial or executive in nature. 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 10l(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 Int '1., 19 I&N Dec. 593, 604 (Comm. 1988).
The AAO notes that the supplemental outline of the beneficiary's "typical day" offered in counsel's January
26, 2007 letter is not consistent with the beneficiary's original job description and those job duties outlined in
counsel's response to the director's request for evidence. Specifically, while the petitioner identified the
beneficiary as meeting with customers in the United States office, it has not accounted for such
responsibilities as meeting with customers overseas, as well as with suppliers both in the United States and
abroad, monitoring production, developing new product collections, attending trade shows, and researching
markets for new customers. Nonetheless, of the job responsibilities addressed in the beneficiary's typical day,
thirty percent of his time is devoted to meeting with customers in the United States office and determining
product orders, tasks which were also identified above as being non-managerial or non-executive in nature.
In light of the fact that these two tasks occupy thirty percent of the beneficiary's time, it is reasonable to
conclude that these job duties in addition to the other non-qualifying tasks not specifically noted in the
beneficiary's typical day but addressed above would account for a primary portion of the beneficiary's day.
Moreover, a review of the beneficiary's job responsibilities in connection with the petitioner's overall purpose
and stage of development suggests that the company's reasonable needs would not be met through the
employment of the beneficiary and four other workers, two of which are part-time employees. The AAO
emphasizes the job duties of the petitioner's sales manager and sales representative. As noted previously, the
sales manager is identified as servicing the North American and Canadian markets, while the sales
representative is solely responsible for the Hawaiian market. These representations are consistent with the
finding that the beneficiary would be personally responsible for the day-to-daysales, negotiations, and
communications with the company's European and Asian customers, and undermine counsel's claim on
appeal that the beneficiary is not performing tasks associated with the daily operation of the United States
company. As the petitioner clearly relies on the beneficiary to perform essential sales, negotiations, and
market research functions related to its operations in the United States, Europe and Asia, the AAO cannot
conclude that the company's reasonable needs might plausibly be met while employing the beneficiary in a
primarily managerial or executive capacity. Moreover, the petitioner has not accounted for the performance
of the job duties assigned to the part-time office executive and marketing coordinator during their absence.
-Page 9
Regardless, 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 10 I(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this
essential element of eligibility.
Counsel's claims on appeal are not sufficient to overcome the original representations that the beneficiary
would be performing primarily non-managerial and non-executive job duties. In her appellate brief, counsel
emphasizes the beneficiary's responsibilities of "holding daily briefings with his management staff" and
lower-level employees, addressing "executive issues" with the company's suppliers and customers, approving
expenses, binding the company in contracts, and "communicating in an executive capacity with the Japan
Corporation." Counsel's account of the beneficiary's job responsibilities largely excludes the beneficiary's
role in performing the day-to-day tasks associated with the sales, marketing, product development, and
inventory functions of the petitioning entity, which the petitioner represented as occupying approximately 71
percent of the beneficiary's time. It is incumbent upon the petitioner to resolve any inconsistencies in the
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of
Ro, 19 I&N Dec. 582, 591~92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course,
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa
petition. MatterofRo, 19 I&N Dec. 582, 591 (BIA 1988).
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the
appeal will be dismissed.
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the
foreign entity in a primarily managerial or executive capacity for at least one year during the three years prior
to his entrance into the United States as a nonimmigrant.
On a statement of qualifications submitted at the time of filing the Form 1-140, the beneficiary was identified
as having occupied the position of managing director in the foreign entity, which is operating as a
manufacturing and export company. The beneficiary's job responsibilities were identified as:
Responsible for communicating with foreign customers and getting orders, controls exports
for the products, explore potential market outside of China, establish sales office in U.S.A.
The AAO notes that the beneficiary's resume, which was also submitted with the original filing, does not
expound on the beneficiary's role as managing director of the foreign entity.
The limited description offered of the beneficiary's former employment as managing director is not sufficient
to establish that he occupied a primarily managerial or executive position in the foreign entity. Based on the
brief outline of tasks, it appears that at least a portion of the beneficiary's time was spent performing daily
non-managerial and non-executive tasks related to the foreign organization's sales and export functions. The
AAO recognizes the representations made by counsel in her July 24, 2006 letter that the foreign entity
employed 39 workers in its factory and 7 sales employees, and acknowledges the foreign entity's factory
employee list submitted with the Form 1-140. These claims, however, do not establish that the beneficiary
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was employed in a primarily managerial or executive capacity or was relieved from performing non­
qualifying day-to-day functions of the foreign entity. The actual duties themselves reveal the true nature of
the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.O.N.Y. 1989), aff'd, 905 F.2d 41
(2d. Cir. 1990).
Moreover, notwithstanding the above determination of the nature of the beneficiary's foreign employment, the
record does not establish that the beneficiary was employed by the foreign entity for at least one year during
the three years prior to his entrance into the United States as a nonimmigrant.
The petitioner stated in its July 24, 2006 letter that the foreign entity was incorporated in the People's
Republic of China on September 19, 2000. According to Citizenship and Immigration Services' (CIS)
records, the beneficiary was admitted into the United States on January 30, 2001 on a B-2 visa, and was
subsequently granted a change of status to an L-1A nonimmigrant intracompany transferee on June 5, 2001.
Accordingly, the record of proceeding demonstrates that the beneficiary worked for the foreign entity for
approximately four months prior to entering the United States. The record of proceeding indicates that the
beneficiary was not employed by the foreign entity for the requisite period of time prior to entering the United
States as a nonimmigrant.
Absent evidence establishing otherwise, the AAO cannot conclude that the beneficiary was employed by the
foreign entity in a primarily managerial or executive capacity for at least one year during the three years
preceding the beneficiary's entrance into the United States as a nonimmigrant. For this additional reason, the
petition will be denied.
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.O. Cal. 2001), aff'd. 345 F.3d 683
(9th CiI. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d CiI. 1989)(noting that the AAO reviews
appeals on a de novo basis).
The AAO recognizes that USCIS previously approved four L-1A nonimmigrant visa petitions filed by the
petitioner on behalf of the beneficiary. 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 §§ 101(a)(44)(A) and (B) of the Act, 8 U.S.C.
§ 1l01(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 nonimmigrant 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 §§ 204 and 214 of the Act, 8
U.S.c. §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.c. § 1427.
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. See 8 C.F.R. § 103.8(d). The prior
nonimmigrant approval does 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 CiI. 2004). The approval of a nonimmigrant
Page 11
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same
beneficiary. CIS denies many 1-140 petitions after approving prior nonimmigrant 1-129 L-l petitions. See,
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d at
22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103.
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and
contradictory 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 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). Due to the lack of
required evidence in the present record, the AAO finds that the director was justified in departing from the
previous nonimmigrant approvals by denying the present immigrant petition.
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. 51 (2001).
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. Here, that burden has
not been met.
ORDER: The appeal is dismissed.