dismissed L-1A Case: Business Services

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac). 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: EAC 08 1 19 5 1748 
 OFFICE: VERMONT SERVICE CENTER 
 Date: JAN 1 4 2010 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
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 
EAC 08 119 51748 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
Administrative Appeals Office (AAO) summarily dismissed the petitioner's appeal on January 30, 2009, 
pursuant to the regulation at 8 C.F.R. § 103.3(a)(l)(v). The matter is now before the AAO on a motion to 
reopen. The AAO will grant the petitioner's motion and affirm its prior decision to dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its chief operating officer 
as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 10 1(a)(15)(L). The petitioner, a New Jersey corporation, states that it is 
business. It claims to be an affiliate off 
located in Turkey. The beneficiary has been employed in the United States in L-1A status 
since 2003 and the petitioner now seeks to extend the beneficiary's stay for three additional years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner submitted a Form I-290B, Notice of 
Appeal or Motion, indicating that a brief and additional evidence were attached. However, the attached 
evidence in the record before the AAO consisted only of Forms 1-94 for the beneficiary and his family 
members, and a copy of the director's decision. 
On November 19, 2008, the AAO contacted counsel by facsimile and advised: "On the Form I-290B, you 
indicated that you would be submitting a brief andlor evidence to the Administrative Appeals Office (AAO) 
within - days. To date this office has no record that any further evidence or brief was ever received with 
regard to this appeal." The AAO advised counsel that he could resubmit a copy of any timely filed brief and 
evidence within five business days. 
Counsel responded on November 19,2008, advising that the AAO that the petitioner did not indicate on Form 
I-290B that a separate brief or evidence would be submitted. Counsel re-submitted a copy of the Form I-290B 
and stated that it "was accompanied by very voluminous supporting documentation which was approximately 
6 inches thick and weighed over 5 lbs.," and was received on June 19, 2008 along with the Form I-290B. 
Counsel attached copies of UPS shipping documents and evidence of delivery of the package to the Vermont 
Service Center. Counsel suggested that the AAO "must be inadvertently referring to a different file or matter." 
The AAO summarily dismissed the petitioner's appeal on January 30, 2009, noting that the petitioner failed to 
submit a copy of its brief or "voluminous supporting documentation" in support of the November 19, 2008 
facsimile request, and therefore had not identified specifically an erroneous conclusion of law or statement of 
fact in support of the appeal. 
The petitioner timely filed the instant motion to reopen on February 25, 2009. Counsel reiterates that a brief 
and supporting documentation were attached to the petitioner's Form I-290B Notice of Appeal or Motion and 
received by the Vermont Service Center on June 19, 2008. Counsel asserts that "the AAO's fax was 
erroneous in its face since the I-290B never stated that a separate brief would follow." Counsel emphasizes he 
believed that the AAO was mistaken about the file, and that, based on this belief, he did not re-ship the large 
EAC 08 119 51748 
Page 3 
package. Counsel requests that the matter be reopened so that the appeal may be adjudicated on its merits. 
Counsel submits a copy of his 22-page brief dated June 16,2008 and voluminous supporting documentation. 
The AAO will grant the petitioner's motion and re-open the matter in order to consider the brief and evidence 
submitted on appeal. There is now sufficient evidence to establish that the brief and evidence were in fact 
submitted with the notice of appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training and employment qualifies himher to perform the intended 
services in the United States; however the work in the United States need not be the 
same work which the alien performed abroad. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed by the petitioner in a primarily managerial or executive capacity under the extended petition. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 
 1 10 l(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; 
EAC 08 119 51748 
Page 4 
(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 1 (a)(44)(B) of the Act, 8 U. S.C. 5 1 10 1 (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. 
The petitioner filed the nonimmigrant visa petition on March 19, 2008. The petitioner stated on Form 1-129 
that it had four (4) employees as of that date. In a letter dated March 8, 2008, the petitioner described the 
beneficiary's role as chief operating officer as follows: 
The beneficiary's great negotiation and contracting skills have yielded the petitioner many job 
orders in the past and [he] will be responsible for negotiating with general contractors and 
subcontractors for job orders, which negotiations deal with terms, such as price, quality and 
grade or goods/products used, timing as to completion, etc. and execution of contracts and 
orders. 
The beneficiary continues to be in full charge of all policy and decision-making. He also 
plans to contract with independent and general contractors to perform construction and 
renovation work. As the business is developing, he hopes to concentrate his time more in 
EAC 08 119 51748 
Page 5 
local construction job orders. The beneficiary's managerial tasks include the hiring and firing 
of all personnel, supervision of construction workers, carpenters and other lower level 
employees, asset purchase decision, contracting with home owners and other contractors, 
execution of business decisions, conducting the financial affairs of the company, and 
exercising the day-to-day operations of the company. 
At this time, the petitioner continues to have three other employees under its employ. 
The petitioner further stated: 
The beneficiary's duties are solely to manage the company, and oversee operations, as well as 
contract with customer and general contractors to provide subcontracting services, such as the 
one with SEARS. . . . All day-to-day operations are performed by its employees as listed in 
the organizational chart. Petitioner's services are in areas of high competition and require his 
constant attention as far as entering into binding contracts which are cost effective, but yet 
attractive to the consumer and profitable to the petitioner. As such it requires a manager with 
binding authority who can make split second decisions as to whether petitioner ought to enter 
into a contract or not. . . . 
The petitioner indicated that the beneficiary allocates approximately 90 percent of his time to the duties 
outlined, most of which is spent "negotiating with and meeting wholesalers and companies contemplating 
using the services of the company." 
The petitioner submitted a two-page document titled "organizational chart" in which it provided the names, 
position titles and duties of its alleged employees. The petitioner identified seven subordinate employees 
The ~etitioner also wovided copies of its JRS Forms W-2, Wage and Tax Statement, for 2007. During 2007, 
($1 1,3 89), and the beneficiary. The petitioner's IRS Forms 94 1, Employer's Quarterly Federal Tax Return, 
indicate that the company had two workers in the first quarter of 2007, three workers in the second quarter, 
four workers in the third quarter, and zero workers in the fourth quarter.' 
On March 27, 2008, the director issued a request for additional evidence (RFE), in which he instructed the 
petitioner to submit: (1) a comprehensive description of the beneficiary's duties; (2) a list of U.S. employees 
which identifies each employee by name and job title; and (3) complete position descriptions for all 
employees in the United States, including a breakdown of the number of hours devoted to each employee's 
job duties on a weekly basis. 
Although the petitioner's Form 941 for the fourth quarter of 2007 indicates that the company had 0 workers 
as of December 12, 2007, the form does indicate that the petitioner paid salaries and wages in the amount of 
$15,655.17 during the quarter. Counsel indicates in his brief that the Form 941 contained a typographical 
error and that the petitioner actually paid three workers. 
EAC 08 119 51748 
Page 6 
In a response dated April 15, 2008, the petitioner reiterated the beneficiary's duties as stated in its initial letter 
and indicated that the company "continues to have seven other employees under its employ." The petitioner 
re-submitted the employee list provided at the time of filing. 
The director denied the petition on May 20, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director noted that the record contains a discrepancy regarding the number of 
employees working for the company. The director observed that the petitioner, despite identifying five to 
seven employees subordinate to the beneficiary, did not provide evidence of wages to more than four people. 
In addition, the director observed that two of the four employees paid in 2007 earned wages consistent with 
part-time employment. The director noted that neither the beneficiary's position nor the subordinate positions 
appear to be professional in nature, and questioned whether the beneficiary's proffered salary of $30,000 is 
"commensurate with a bona fide manager or executive in a major metropolitan business market." 
The director concluded that, as it is not clear who is actually providing the goods and services of the 
organization, it "seems likely that the beneficiary has performed or will perform or help to perform these 
duties," rather than performing primarily managerial or executive duties. 
While the AAO finds that the director's adverse determinations were warranted based on the evidence of record, it 
is noted that the director's underlying analysis, in part, was flawed, as the director issued an adverse finding on the 
basis of the beneficiary's salary. The AAO notes, however, that a beneficiary's salary is an admissibility factor and 
not a criterion to be used in determining his or her prospective employment capacity. The director's finding with 
regard to the latter is not supported by any statute, regulations or precedent decision. 
Further, the director based the decision, in part, based on a finding that the beneficiary and his subordinates are 
not professionals, and based on a finding that the petitioner's business would not require the services of 
professional workers. A beneficiary need not supervise professionals in order'to qualify as a manager or 
executive unless his primary role is that of a first-line supervisor. See section 101(a)(44)(A)(iv) of the Act. 
Nor is there any statutory or regulatory requirement that the beneficiary himself qualify as a professional. 
In the appellate brief, counsel emphasizes that the beneficiary has been approved for employment in L-1A 
classification on three prior occasions, and contends that "there should be no question as to whether or not the 
beneficiary is acting as a bona fide manager or executive." Counsel states that there have been no major 
changes in the business practices of the petitioning company and the beneficiary's duties remain identical to 
the previous duties. Counsel asserts that the beneficiary's "main function is to negotiate contracts with various 
general contractors to perform subcontracting services," and that "this duty alone is a full time position," 
requiring approximately 90 percent of the beneficiary's time. 
With respect to the number of employees working for the company, the petitioner states that "the employee 
numbers fluctuate constantly," and that the company currently has four employees. Counsel acknowledges 
that two of the individuals who worked for the company in 2007 no longer work for the company, but 
emphasizes that the petitioner has "always had numerous employees." Counsel indicates that the beneficiary's 
subordinate staff includes a "manager, foreman, salesperson, laborers and office staff.'' 
EAC 08 119 51748 
Page 7 
Upon review, and for the reasons stated herein, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
in either an executive or a managerial capacity. Id. The definitions of executive and managerial capacity 
each have two parts. First, the petitioner must show that the beneficiary performs the high-level 
responsibilities that are specified in the definitions. Second, the petitioner must show that the beneficiary 
primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to- 
day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 
199 1). 
The fact that the beneficiary manages a business does not necessarily establish eligibility for classification as 
an intracompany transferee in a managerial or executive capacity within the meaning of sections 
101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(l5)(L) 
of the Act does not include any and every type of "manager" or "executive"). While the AAO does not doubt 
that the beneficiary exercises discretion over the petitioner's day-to-day operations, the petitioner has failed to 
show that his duties will be primarily in a managerial or executive capacity. 
The petitioner's descriptions of the beneficiary's duties, while lengthy, are repetitive and fall significantly 
short of specifically defining how much time the beneficiary devotes to managerial or executive tasks on a 
day-to-day basis. For example, the petitioner indicates that the beneficiary's duties "are solely to manage the 
company, and oversee operations, as well as contract with customers and general contractors to provide 
subcontracting services." The petitioner further states that the beneficiary is responsible for "asset purchase," 
"conducting the financial affairs of the company," "negotiating with buyers and retailers of its products and 
services on a daily basis," and "exercising the day-to-day operations of the company." The petitioner does not 
explain what specific tasks the beneficiary performs to "manage the company," "exercise the day-to-day 
operations of the company," or in "conducting" the company's financial affairs. Furthermore, without 
additional explanation, it cannot be concluded that the beneficiary's responsibility for "negotiating with 
buyers," and purchasing assets are managerial duties, rather than routine sales or purchasing functions. 
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. The petitioner failed to provide 
any detail or explanation of the beneficiary's activities in the course of his daily routine. 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), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner claims that the beneficiary's primary duty is to negotiate contracts with general construction 
contractors to provide subcontracting services and that such responsibility requires most of the beneficiary's 
time. The petitioner has submitted letters from five business associates who confirm that they have hired the 
petitioning company as a subcontractor. The petitioner's recent invoices indicate that the company provides 
rain gutter installation services to construction and roofing companies, gutter cleaning companies, and 
individual homeowners. There is insufficient evidence to support the petitioner's claim that the beneficiary is 
primarily engaged in negotiating complex contracts with general contractors. Three of the petitioner's 2008 
invoices (#754, #715, #709) include Independent Contractor's Labor Statements for subcontract work the 
EAC 08 119 51748 
Page 8 
petitioner performed for the general contractor Home Remodelers. The statements identify the beneficiary as 
the petitioner's installer for all three customer projects. As the petitioner did not include installation of gutters 
among the beneficiary's job duties, this evidence raises reasonable questions regarding whether the 
description provided is inaccurate, or, at best, incomplete. 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 ofHo, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational duties, the 
nature of the petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. The petitioner claims that "all day-to-day operations" are 
performed by the company's subordinate employees. 
As noted by the director, the petitioner has not clearly explained or documented the number or types of 
workers it employed at the time of filing. The petitioner stated on Form 1-129 that it had four workers. The 
petitioner's IRS Forms W-2 confirmed that the company paid a total of four workers during 2007, although 
counsel indicates that there were three workers during the last quarter of that year. Nevertheless, the petitioner 
submitted an organizational chart at the time of filing which included eight employees. With the exception of 
the beneficiary, none of the workers listed on the organizational chart received wages from the petitioner in 
2007. In May 2008, when the petitioner responded to the RFE, the petitioner indicated that the petitioner 
employs seven employees. In June 2008, counsel stated that the petitioner currently has four workers. Counsel 
simultaneously stated that the beneficiary's subordinates include a manager, foreman, salesperson, laborers 
and office staff. Neither the petitioner or counsel have offered any explanation for these discrepancies, other 
than noting that employee numbers "fluctuate" and that the company always has "numerous employees." The 
AAO cannot determine that the number or types of employees working for the petitioner based on the 
conflicting evidence submitted. Again, 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 Ho, 19 I&N Dec. at 591-92. 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. 
Id, at 591. 
Given that the petitioner appears to have no more than three employees working subordinate to the 
beneficiary, it is essential that the petitioner provide a clear and credible description of their actual duties so 
that USCIS can determine whether the subordinate employees could reasonably relieve the beneficiary from 
performing the non-managerial functions of the company on a day-to-day basis. The only employees 
depicted in the petitioner's photographs appear to be the beneficiary and gutter installation workers. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
EAC 08 119 51748 
Page 9 
states that 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)(A)(iv) of the Act; 8 C.F.R. 3 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 
 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). Here, the petitioner does not 
claim that the beneficiary supervises any professional workers, and its claims that the beneficiary's 
subordinates include a subordinate manager and foreman/supervisor are not corroborated by any evidence. At 
most, the beneficiary appears to supervise the employees who install gutters for the petitioner's customers. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101 (a)(44)(A)(ii) of the Act, 8 U.S.C. 3 1 101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a detailed description of the duties to be performed in managing 
the essential function, i.e. identify the function with specificity, articulate the essential nature of the function, 
and establish the proportion of the beneficiary's daily duties attributed to managing the essential function. See 
8 C.F.R. tj 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
On appeal, the petitioner asserts that the beneficiary is primarily engaged in negotiating contracts with general 
contractors. However, as discussed the beneficiary's duties have not been described in sufficient detail and 
therefore, it cannot be affirmatively determined that his duties are primarily managerial in nature. 
Furthermore, as noted above and discussed further below, the petitioner has not substantiated its claim that the 
beneficiary's subordinates relieve him from performing non-managerial duties. While performing non- 
qualifying tasks necessary to produce a product or service will not automatically disqualify the beneficiary as 
long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the burden of 
establishing that the beneficiary is "primarily" performing managerial or executive duties. Section 101(a)(44) 
of the Act. Whether the beneficiary is a "hnction" manager turns in part on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial. 
Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, the AAO 
cannot determine what proportion of his duties would be managerial or executive, nor can it deduce whether 
the beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The AAO notes that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 3 10 l(a)(44)(C) of the Act, 8 U .S.C. 3 1 10 1 (a)(44)(C). However, in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "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 Sewices 469 F. 3d 1313, 1316 (9th 
Cir. 2006) (citing with approval Republic of Transkei 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)). It is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as a company's small personnel size, the absence of employees who would 
EAC 08 119 51748 
Page 10 
perform the non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
At the time of filing, the petitioner was a three-year-old construction company which employed the 
beneficiary as chief operating officer. The petitioner has not documented the exact number of employees 
working for the company at the time of filing, but, it appears that the petitioner employed, at most, three 
installation employees. The petitioner has not substantiated its claim that it employs a manager, a 
supervisor/foreman, a finance manager, a sales employee or a secretary, as there is no evidence of wages paid 
to any of these employees. The petitioner reasonably requires employees to purchase materials and tools, 
handle sales calls from homeowners and general contractors, obtain customer specifications and estimate 
project costs, issue invoices, install rain gutters, handle bookkeeping and banking, and perform administrative 
and clerical tasks associated with operating a business. The evidence of record does not demonstrate who 
would perform the majority of these responsibilities, and suggests that the beneficiary himself is involved in 
directly providing the petitioner's services, given that he is identified on some of the submitted invoices as an 
"installer." An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Int 7, 19 I&N Dec. 593,604 (Comm. 1988). 
While USCIS previously approved three petitions for L-1A status filed on behalf of the beneficiary, the prior 
approvals do not preclude USCIS from denying an extension of the original visa based on reassessment of 
beneficiary's qualifications. Texas A&M LTniv. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 
2004). Furthermore, the AAO notes that the most recent prior approval was granted in April 2006 to a 
- - - 
different petitioner, 
 , the petitioner's predecessor company, and the instant petition 
was filed as a 
If the previous nonimmigrant petitions were approved based on the same contradictory and unsupported 
assertions that are contained in the current record, the approvals would constitute material and gross error on 
the part of the director. Due to the lack of evidence of eligibility in the present record, the AAO finds that the 
director was justified in departing from the previous approvals by denying the present request to amend and 
extend the beneficiary's status. As discussed above, the evidence submitted fails to describe the beneficiary's 
actual job duties in detail as required by 8 C.F.R. 9 214.2(1)(3)(ii), includes numerous unresolved 
inconsistencies regarding the staffing of the company, and is insufficient to establish that the beneficiary 
would be employed in a managerial or executive capacity. 
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). Furthermore, 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). 
EAC 08 119 51748 
Page 11 
The petitioner has not submitted evidence on appeal to overcome the director's determination that the 
beneficiary will not be employed in a managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.