dismissed L-1A Case: Computer Services

U.S. Department of tlomeland SE 
20 Massachusctrs Ave . N W . Rm 
Wash~ng~on. DC 20529 
rdmdatPWb0 
prevent ddy an- 
inVJaad~p~ 
U.S. Citizenship 
and Immigration 
PUBLlC COPY 
F~le: WAC 04 166 5 12 16 Office: CALIFORNIA SERVICE CENTER Date: ~w 2 
M RE: Petitioner: 
- 
Petition: Petition for aGmrnigrant Worker Pursuant to Section 101 (a)(15)(L) of the Irnm~gratioi 
and Nationality Act, 8 U.S.C. 4 I IOI(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Th~s IS the decision of the Admln~strative Appeals Office in your case. All documents have been retumec 
the office that orig~nally decided your case. Any further inquiry must be made to that office. 
dm~nistrative Appeals Office 
WAC 04 166 51216 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. 
' 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appe 
The petitioner filed this nonimmigrant petition seeking to extend its authorization to employ its cl 
executive officeras an L-1 A nonimmigrant intracompany transferee pursuant to section 101(a)(l)(L) of 
Immigration and Nationality Act (the Act), 8 U.S.C. 1 lOl(a)(lS)(L). The petitioner is a California : 
proprietorship established by the beneficiary in 2003 that engages in computer repair services and purck 
and sale of computer parts. The petitioner claims that it is the affiliate of Accesoric 
Sixvicios, located in Mexicali, Mexico. The beneficiary was initially granted a one-year period in whicl 
open a new office in the United States and the petitioner now.seeks to extend the beneficiary's stay for a v 
year period. 
The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary wil 
employed in the United States in a primarily managerial or executive capacity; or that (2) the petitioner 
qualifying organizition. The director.noted that .the petitioner, as a sole proprietorship, is not a legal en 
'separate from the beneficiary, and is therefore not a U.S. employer for immigration purposes. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the benefic: 
supervises and directs the performance of three professionals. Counsel further asserts that the statute was 
intended to limit managers or executives to persons who supervise large organizations, and notes that 
director should also consider independent contractors supervised by the beneficiary. With respect to 
director's determination that the petitioner is not a qualifying organization, counsel claims that the petitic 
is "in the process of becoming a Corporation." Counsel submits a brief and additional evidence in suppor 
the appeal. . 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the crit~ 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for 
continuous year within three years preceding the beneficiary's application for admission into the Un: 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, 
specialized knowledge capacity. 
The regulation at 8 C.F.R. $ 214.2(1)(3) states that an individual petition filed on Form 1-129 shall 
accompanied by: 
(i) Ev~dence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(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. 
WAC 04 166 51216 
Page.3 
(iii) Evidence that the alien has at least'onl 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 regulation at 8 C.F.R. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening < 
new office, may be extended by filing a new Form I- 129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States ent~ty has been doing business as defined In 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement descnbing the staffing of the new operation, includ~ng the number of 
employees and types of pos~tions held accompan~ed by evidence of wages pa~d tct 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States enti 
a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. ,$ 1101(a)(44)(A), defines the term "managerial capacity" : 
assignment within an organization in which the employee $rnarily: 
(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; 
WAC 04 166 51216 
Page 4 
(iii) if another employee or other employees are directly supervised, has the authorit4 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 functlon for 
which the employee has authority. A first l~ne supervisor 1s not considered to be 
acting in a managerial capaclty merely by virtue of the superv~sor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" as a 
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; 
(it) establishes the goals and policies of the organization, component, or funct~on; 
(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 a May 19, 2004 letter appended to the initial petition, the petitioner described, the beneficiary's duties 
follows: 
[The beneficiary's] responsibilities are those of reviewing the performance and activities .of 
other professionals and administrative staff, implementing corporate policies and professional 
standards., [The beneficiary] also negotiates contracts with American businesses that seek to 
either purchase or sale [sic] computers and computer parts. . . . 
[The beneficiary's] responsibilities as Chief Executive Officer shall include the overall 
supervision and direction of this business. The employees and independent contractors shall 
report directly to him. . . . 
The position of Chief Executive Officer of this particular business requires a person to be 
responsible for corporate financial planning, marketing and promotional strategy, for 
WAC04 166 51216 
Page 5 
negotiating contracts and for making high level decisions involving technical, legal and fiscal 
matters. 
The petitioner indicated on Form 1-129 that it had two employees at the time of filing. The petlti 
submitted an organizational chart identifying the beneficiary in the roles of chief executive officer 
"sales," a software developer, an external contractor who provides intemetlweb design services, ant 
external accounting office. The petitioner also submitted two pay statements confirming the employ me^ 
the "software developer" on a part-time basis during the month of April 2004. 
Counsel indicated in his ~ay 19, 2004 cover letter that the beneficiary "does computer repairs on comr 
mainframes, minis and micros, peripheral equipment, and work [sic] processing systems," reviews 
performance of other professionals and administrative staff, implements corporate policies, and negotl 
contracts with banks, suppliers, clients, and independent contractors. 
'& ~une 14, 2004, the director requested additional evidence to establish that .the beneficiary will 
employed in a managerial or executive capacity. Specifically, the director requested: (1) a more deta 
description of the beneficiary's duties, the percentage of time he devotes to each of the listed duties, and 
titles and position descriptionsfor all employees under his supervision; (2) copies of Califomia Forms Dl 
Quarterly Wage and Withholding Report, for the last two quarters that were accepted by the State 
California; (3) copies of the U.S. company's payroll summary, Forms W-2, and ~orm's W-3 evidencing wa 
paid to employees; (4) a list of the specific goals and policies established and discretionary decisi 
exercised by the beneficiary during the previous six months; and, (5) a specific day-to-day description of 
duties the beneficiary has performed over the last six months. 
In a response dated June 29, 2004, the petitioner indicated that the beneficiary's daily activities inclul 
technical jobs (20 percent); purchasing (15 percent); customer service (15 percent); sales (20 perce 
administrationJplanning (10%); Mexico office (10%); and systems analysiddesign (10%). In response to 
director's request for a specific description of the beneficiary's day-today duties, the petitioner indicated t 
the beneficiary would: 
.m Manage people and financial resources of the operation to maximise [sic] value added 
and minimise [sic] costs. 
Contribute to the development and integration of new systems and processes to enable 
the growth objectives of the business. 
Establish and monitor appropriate measurement criteria, making improvements where 
needed. 
Establish revenue.forecasts for maintenance contracts, license software implementations 
, and professional service billings. 
~e~otiate Software license agreements and professional service contracts with end user 
customers. 
~eview and approve company expenditures. 
Strategic planning and execution to enhance profitability, productivity. and efficiency 
throughout the company's operations. 
WAC 04 166 51216 
Page 6 
Participate' in vendor negotiations to ensure product relevance, credit terms, shipping 
methods and cost-efficiency. 
identify and select internal and external professional personnel to execute. the business 
plan. 
Lead the effort to secure relationships with developing and prospective customers. 
Establish a real concern for customers and a sense of urgency in delivering solutions. 
Lead meetings to communicate the tactical and strategic business plans with all 
employees. 
Identify new vendors and solidify established supplier relationships. 
Negotiate and establish bank accounts, business loans, commercial credit lines. 
Maintain a close communication with the external accounting office to take care of all the 
legal paperwork of thk birsiness. 
Participate in negotiations with external contractors to ensure the correct working 
environment arid establish the expectations of the business. 
Purchase of merchandise for resale. 
Attendance to conventions and training sessions to keep the business at the leading edge. 
The 'provided the requested list of goals and policies established by the beneficiary 
discretionary decisions exercised by the beneficiary within the previous six months, and provide 
description of his 'day-to-day activities which was similar to that quoted above. The description of 
.beneficiary's day-to-day duties also included calling and visiting customers to monitor status of orders an 
solicit new orders, calling vendors to check delivery issues and place orders, and performing market resea 
The petitioner indicated that the beneficiary supervises a systems programmer hired in April 2004 r 
develops'and enhances client applications. The petitioner submitted its California Fonn DE-6, C!uartc 
Wage and Withholding Report, for the second quarter of 2004 and pay stubs for the months of April, May 
June 2004, which confirmed that the systems programmer was employed on a part-time basis. 
On July 29, 2004, the director denied the petition concluding that the beneficiary would not be employed I 
managerial or executive capacity in the United States. The director noted that petitioner's description of 
percentage of time the beneficiary devotes to each of his job dut~es reveals that he primarily performs rout 
business tasks relating to the sales and service of computers and computer parts. The director noted that f 
conclusion was supported by the beneficiary's supervision of only one non-professional employee who wo 
not adequately relieve the beneficiary from performing all of the non-qualifying functions of the businc 
The director observed that the'fact that an individual manages a small business does not necessarily establ 
eligibility 'for classification as an intracompany transferee in a managerial or executive capacity within 
meaning of section 101(a)(44) of the Act. 
On appeal, counsel for the petitioner asserts that the beneficiary qualifies as a manager under the statutc 
defin~tlon because he manages the petitioner's business, has the authority to hire and fire employees, a 
supervises three professronal employees. Counsel cites National Hand Tool Corp. v. Pasquarell. 889 F. 
1472 n. 5 (5" Cir. 1989) and Mars Jewelers. Znc. v. INS, 702 F.Supp. 1570,573 (N.D. Ga. 1988) to stand 
the proposition that the statute was not intended to limit managers or executives to persons who supervlsl 
large number of persons or a large enterprise. Counsel clalms that the systems programmer and r 
. . . . 
WAC 04 166 51216 
Page 7 
petitioner's two extemal contractors are all professionals working under the beneficiary's supervisior 
support of this statement, the petitioner submits copies of educational documentation and certifications fo~ 
claimed subordinates, two of whom have bachelor's degrees. The petitioner also submits a letter from 
accountant confi&ing that the petitioner utilizes her firm's services in the field of accounting. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary wil 
employed .in a managerial or executive capacity in the United States. When examining the executive 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the job du- 
See 8 C.F.R. $ 214.2(1)(3)(ii). The petitioner's description,of the job duties must clearly describe the dutie 
be performed by the beneficiary and indicate whether such duties are either in an executive or manage 
capacity. Id. In addition, the definitions of executive and managerial capacity have two parts. First, 
petitioner must show that the beneficiary perfoms the high-level responsibilities that are specified in 
definitions. Second, the petitioner must show that the beneficiary primarily performs these speci. 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion Wo 
' 
Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9thCir. July 30, 1991). 
Although counsel claims on appeal that the beneficiary will be employed in a managerial capacity, 
petitioner has submitted no evidence to establish that he will primarily perfoim managerial duties for 
petitioning organization. Although the petitioner submitted a lengthy list of duties that described 
beneficiary's role in overseeing the company's employees, policies, finances, contract negotiat~ons, ; 
strategic planning, the petitioner also estimated that the beneficiary devotes only 10 percent of his time 
"administration and planning fu'nctions." As noted by the director, the petitioner indicated that the benefici 
devotes 30 percent of his time to providing the services of the business, including "technical jobs" : 
"systems analysisldesign." Based on the petitioner's representations, the beneficiary allots an additional 
percent of his time to sales, purchasing and customer service activities. These are also tasks necessary 
provide a service or product, and these duties will not be considered managerial or executive in nature. . 
employee who primarily performs the tasks necessary to produce a product or to provide services is r 
considered to,be employed in a managerial or executive capacity. Matter of Church Scientology Internation 
19 I&N Dec. 593,604 (Comm. 1988). 
While the AAO recognizes that the beneficiary exercises discretion over the day-to-day affairs. of t 
business, the fact that the beneficiary owns and manages a small business is insufficient to establish that t 
beneficiary is employed in a managerial or executive capacity. The actual duties themselves reveal the tr 
nature of the employment. See Fedin Bros. Co.. Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 19891, a# 
905 F.2d 41 (2d. Cir. '1990). Accordingly, whether the beneficiary is a managerial or executive ern ploy^ 
turns on whether the petitioner has sustained its burden of providing that his duties are "primarily" manageri 
or executive. See sections 101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first 
principally,' or "chiefly." Webster's II New College Dictionary 877 (2001). Where an individual 
"principally" or "chiefly," performing the tasks necessary to produce a product or to provide a service, th 
individual cannot also be "principally" or "chiefly" performing managerial or executive duties. As discussc 
above, the beneficiary's primary duties, requiring approximately 80 percent of his time, are related to sale 
purchasing, customer service,'and directly providing the technical services of the business. 
WAC 04 166 51216 
Page 8 
On appeal, counsel asserts that the beneficiary qualifies as a manager pursuant to section 101(a)(44)(A)(ii) 
thc Act because he supervises three professionals. Counsel's argument is not persuasive. In evaluati~ 
whether the beneficiary manages professional employees, the AAO must evaluate whether the subordinz 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Sectil 
lOl(a)(32) of the Act, 8 U.S.C. 9 1101(a)(32), states that "[tlhe term profession shall include but not 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or second2 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, r 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction a 
study .of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of Ling, 13 l&N Dec. 35 (R.C. 196 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree h 
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does . 
automatically lead to the conclusion that an employee is employed in a professional capacity as that tern 
defined above. '~lthough the petitioner has submitted evidence that its part-time "systems programmer" hz 
bachelor's degree, it has not established that such a degree is required for the position, which pays s.25 abc 
the minimum wage and does not appear to involve particularly complex duties. Nor has the petitioner shc 
that this employee supervises subordinate staff members or manages a clearly defined department or funcl 
of the petitioner, such that he could be classified as a manager or supervisor. Counsel claims that 
beneficiary also supervises two external contractors, an accountant and a web designer, who are profession 
However, the petitioner has not submitted documentation evidencing that it regularly utilizes the senice: 
these independent contractors or adequately described the services they provide, such that they could 
considered employees for the purpose of this analysis. Going on. record withqut supporting documen 
evidence is not sufficient' for purposes of meeting the burden of proof in these proceedings. Matter of Soj 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure CraJ of California, 14 I&N Dec. 190 (I 
Comm. 1972)). Thus, the petitioner has not shown that the beneficiary's subordinate employee is einplc 
in a supervisory, professional, or managerial capacity, as required by section 101(a)(44)(~)(ii) of the Act. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable need 
the organization, may not be the determining factor in denylng a visa to a multinational manager or execu. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. Ej 1101(a)(44)(C), if staffing levels are used as a fi 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take 
account the reasonable needs of the organization, in light of the overall purpose and stage of developlnei 
the organization. In the present matter, however, the regulations provide strict evidentiary requirement! 
the extension of a "new office" petition and require CIS to examine the organizational structure and stal 
levels of the petitioner. See 8 C.F.R. 6 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 6 214.2(1)(3)(\ 
allows the "new office" operation one year within the date of approval of the petition to support an exec! 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one- 
period. If the business does not have sufficient staffing after. one year to relieve the beneficiarq 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation fc 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiaq 
predominantly managerial or-executive position. 
WAC 04 166 51216 
Page 9 
Counsel cites National Hand Tool Corp. v. PasquareN, 889 F.2d 1472, n.2 (5'h Cir. 1989), and Mars Jewel1 
fnc. v. INS, 702 E.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size c 
petitioner will not, by itself, undermine a finding that.a beneficiary will act in a primarily mzmageria 
executive capacity. Counsel has furnished no evidence to establish that the facts of the instant petition 
anaIogous to those in National Hand Tool Corp. v.  asq qua re^ or Mars Jewelers, Inc. v. INS. It is noted 
both of the cases cited by counsel relate to immigrant visa petitions, and not the extension of a "new off 
nonimmigrant visa. As the new office extension regulations call for a review of the petitioner's bush 
activities and staffing.after one year, the cases cited by counsel are distinguishable based on the applici 
regulations. See 8 C.F.R. $ 214.2(1)(14)(ii). Additionally, in contrast to the broad precedential authorit: 
the case law of a United States circuit court, the AAO is not bound to follow the published decision I 
United States district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 
(BIA 1993). Although the reasoning underlying a district judge's decision will be given due considera 
when it is properly before the AAO, the analysis does not have to be followed as a matter of law. Id. at . 
As counsel has not discussed the facts of any of the cited matters, they will not be considered.in 
proceeding. 
Counsel'further refers to an unpublished decision in which the AAO determined that the beneficiary me! 
requirements of sewing in a .managerial or executive capacity even though he was the sole emplo 
Counsel has fumishe'd insufficient evidence to establish that the facts of the instant petition are analog01 
those in the unpublished matter. Again, going on record without supporting documentary evidence is 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N De 
165. Furthermore, while 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Counsel states on appeal that the petitioner will hire additional employees in the future as needed. Howt 
the petitioner must establish eligibility at the time of filing the nonimrnigrant visa petition. A visa pet 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new o 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Based on the foregoing discussion, it cannot be found that the beneficiary will be employed primarily 
qualifying managerial or executive capacity. For this reason, the appeal will .be dismissed. 
The second issue in the present matter is whether the petitioner has established that ~t has a quahf 
relationship wlth the fore~gn entity. 
The regulation at 8 C.F.R, Ej 214.2(1)(l)(ii) states, in pertinent part: 
(G) Quallfiring organization means a United States or foreign firm, corporation or other legal 
entity which meets exactly one of the qualifying relationships in the definitions of a 
parent, branch, affiliate or subsidiary specified paragraph (l)(l)(ii) of this section. 
WAC 04 166 51216 
page 10 
(L) Af4liale means 
(I) One of two subsidiaries both of which are owned and controlled by the same parent 01 
individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, eact 
individual owning and controlling approximately the same share or proportion of eacl 
entity. 
The petitioner claimed to be an affiliate of the beneficia;ry9s foreign employer and stated that both businesse: 
100 percent owned and controlled by the same individual, the beneficiary. The petitioner submitted evid~ 
indicating that both the foreign entity and the U.S. entity are sole proprietorships. 
The director denied the petition concluding that the petitioner is not a qualifyng organization, and therefore 
no qualifying relationship with the foreign entity. Specifically, the director determined: 
A sole proprietorship does not qualify as a legal entity for purposes of filing a nonimmigrant 
intracompany transferee petition for an owner. 8 C.F.R. 214.2(1)(l)(ii) requires that the 
beneficiary seek to enter the United States temporarily in order to continue to render his services 
to a branch of the foreign employer or a parent, affiliate, or subsidiary thereof. For nonimmigrant 
purposes, a corporation is a separate legal entity from its stockholders and able to file a petition 
and employ them. Matter of Tessel, 17 I. & N. Dec. 631 (Comrn'r 1981). However, neither a 
sole proprietorship nor a partnership is a legal entity apart from its owner or owners. Matter of 
United Investment Group, 19 I. & N. Dec. 248 (Comrn'r 1984). 
Accordingly, where a sole proprietor files a petition for its owner, there is no separate legal entity 
that can employ- the beneficiary and that can continue the business operations once tht: 
beneficiary is transferred abroad upon completion of the temporary services. 
It is hndamental to this nonimmigrant classification that there be a Unlt'ed States entity to 
employ the beneficiary. In order to meet the definition of "qualifying organization," there must 
be a United States employer. 8 C.F.R. 214.2(1)(1)(ii)(G)(Z). . . . 
Approval of the instant case would effectively permit the beneficiary to self-petition. If the 
petitioner is actually the individual beneficiary doing business as a sole proprietorship, with no 
authorized branch office of the foreign employer or.separate legal entity in the United States, 
there is no U.S. entity and no qualifying organization. 
On appeal, counsel asserts that the petitioner is in the process of becoming a corporation and provides a cop 
articles of incorporation to be filed with the California Secretary of State. 
The petitioner has not. submitted evidence on appeal to overcome the director's determination on this is 
Again, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. .4 
WAC 04 166 51216 
Page, I1 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under i 
set of facts. Matter of Michelin Tire Corp., supra. As the petitioner was a sole proprietorship owned t 
beneficiary at the time the petition was filed, it is not a qualifying organization. For this additional reaso 
appeal will be dismissed. 
The AAO notes that CIS approved a previous petition filed by the petitioner on behalf of this benefi 
(WAC 03 206 50964). As the petitioner is not and never was a qualifying organization as defined at 8 C 
§ 214.2(1)(l)(ii)(G) of the Act, the approval of the first petition constituted gross error on the part c 
director. The approval of the initial petition should be revoked if that record contains the same evic 
submitted with this petition. See 8 C.F.R. 5 2 14.2(1)(9)(iii). 
The AAO is not required to approve applications or petitions where eligibility has not been demonsb 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scienti 
International, 19 I&N Dec. 593, 597 (Corn. 1988). It would be absurd to suggest that CIS or any ag 
must treat acknowledged errors as binding precedent. Sussex Engg. Lrd. v. Montgomery, 825 F.2d 1084, 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). ~urthermore, the AAO's authority over the service ce 
is comparable to the relationship between a court of appeals and a district court. Even if a senrice c 
director had approved the nonimmiaant petition on behalf of the beneficiary, the AAO would not be boul 
follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS,' 2000 
282785 (E.D. La.), afd, 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 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the be 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden 
not been met. Accordingly, the director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.