dismissed L-1A Case: Construction

identifYingdatadeletedto
pre"~t clearlyunwarranted
mvaSlOnofpersonalprivacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W. Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: EAC 07 008 51133 Office: VERMONT SERVICE CENTER Date: NOV 06 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § llOl(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.
+~ert P. Wiemann, ief
oministralive Appeals Office
www.uscis.gov
EAC 07 008 51133
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-IA
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The petitioner, an Arizona corporation, is engaged in the
construction industry. It claims to have a qualifying relationship with Willma, S.A. de C.V., located in
Mexico. The petitioner has employed the beneficiary in L-IA status since 2004 and the petitioner now seeks
to extend his status.
The director denied the petition concluding that the petitioner had not established: (1) that the beneficiary
would be employed in a managerial or executive capacity; (2) that the U.S. entity and the foreign entity
maintain a qualifying relationship; or (3) that the foreign entity continues to do business as required by the
regulations.
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 asserts that the petitioner submitted
sufficient evidence to establish that the beneficiary is employed in a managerial capacity. Counsel attaches
documentation related to the petitioner's construction projects and emphasizes that the beneficiary signs and
reviews all documents and is the individual who made the investments.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in Section 10I(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. § 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 (l)(I)(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 him/her to perform the intended
EAC 07 008 51133
Page 3
services in the United States; however the work in the United States need not be the
same work which the alien performed abroad.
The first issue addressed by the director is whether the petitioner established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition.
Section 101(a)(44)(A) of the 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 subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the
authority to hire and fire or recommend those as well as other personnel
actions (such as promotion and leave authorization), or if no other employee
is directly supervised, functions at a senior level within the organizational
hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function
for which the employee has authority. A first-line supervisor is not
considered to be acting in a managerial capacity merely by virtue of the
supervisor's supervisory duties unless the employees supervised are
professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(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.
EAC 07 008 51133
Page 4
The nonimmigrant petition was filed October 11, 2006. The petitioner indicated on Form 1-129 that the
beneficiary would continue to serve as the president of the U.S. company. The petitioner stated that the U.S.
company had four employees at the time the petition was filed. The petitioner did not submit an L
Classification supplement, a statement from counsel from the petitioner, or supporting evidence, other than
evidence of the beneficiary's current L-IA status.
The director issued a request for additional evidence on November 29, 2006, in which the petitioner was
instructed to submit: (1) evidence that establishes the duties performed by the beneficiary in the past year and
the duties he will perform if the petition is extended; (2) a list of the U.S. company's employees by name and
position title; and (3) a complete position description for each employee, including the beneficiary, including
a breakdown of the number of hours devoted to each of the employee's job duties on a weekly basis.
In a response received on January 22, 2007, the petitioner provided the following description of the
beneficiary's duties:
Will plan, direct, coordinate, and control the daily operation of the corporation through the
three division managers in construction operations, sales & marketing, and the chief financial
officer. He will be responsible for preparation of a budget and monitor expenses against the
budget. He will direct the development of and approve standards and procedures. He will be
responsible for development of personnel policies and obtaining all licensing required. He
will be responsible for timely, orderly, accurately and consistently maintaining financial and
operation reports. He will assume all aspects of daily operation_of the corporation, including
hiring, firing of employees, determination of employee's salaries within salary structured
guidelines, organizational structure, staffing within approved budgets, and approving all
expenses reports. Moreover, he will promote the philosophy as outlined in the corporation's
Mission Statement.
The petitioner also provided an organizational chart for the U.S. company, which represents the beneficiary as
supervising an operations manager, a sales manager, and an administrative assistant. The chart also depicts
one sales person who reports to the sales manager. The petitioner provided position descriptions for the
operations manager and the administrative assistant, but the information was provided in Spanish and was not
accompanied by an English translation. The petitioner also submitted a "yearly earnings report" for the year
ended on December 31, 2005, which showed that the individuals identified as operations manager and sales
person were each paid gross wages of $1,080 for the months of January and February 2005, but received no
payments for the remainder of the year. The administrative assistant received gross wages of $480 for the
first two months of 2005, but also received no wages thereafter. The employee identified as the sales
manager did not receive wages in 2005, according to the earnings statement. The petitioner did not submit
evidence of wages paid to employees in 2006.
The petitioner also provided what appears to be a list of independent contractors who had provided services in
connection with the petitioner's construction projects in the areas of surveying, air conditioning, excavation,
granite installation, painting, window installation, plumbing, engineering design, property appraisal, drilling
and general construction. The petitioner submitted a copy of an agreement dated April 27, 2006, between the
beneficiary and two construction/contracting firms who agreed to construct a single family home based on
specifications approved by the beneficiary, as well as copies of several invoices from other contractors.
EAC 07 008 51133
Page 5
The director denied the petition on May 7, 2007, concluding that the petitioner had not established that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director noted the evidence submitted suggested that the beneficiary is the sole full-time employee of the
U.S. company. The director acknowledged the list of contractors submitted, but found no evidence that the
petitioner employs laborers. The director also acknowledged the petitioner's organizational chart, but noted
that the petitioner had not provided evidence of wages paid to employees, or English translations for their
position descriptions. In addition, the director observed that the position description provided for the
beneficiary was too vague to establish his employment in a qualifying capacity. The director concluded that,
given the size and nature of the corporation, the beneficiary would act as a first-line supervisor, rather than
performing primarily managerial or executive duties.
On appeal, counsel for the petitioner states the following on Form 1-290B, Notice of Appeal to the AAO:
The service indicated that the petitioner have [sic) not submitted sufficient evidence to prove
that the beneficiary is in a managerial capacity, attach [sic) is the evidence to the contrary,
you will see that the documents for the projects here are sign and review [sic] by [the
beneficiary] and the beneficiary is the one person investing in all the project of [the
petitioner] .
You will also find sufficient evidence of the investments in the Millenia Project and Cortez
Project.
The attached documents include: the petitioner's balance sheet as of May 31, 2007; a general ledger statement
for the period January 1,2006 through May 31, 2007; and documentation related to the petitioner's residential
construction projects, including permits, correspondence, proposals estimates and invoices from contractors;
and engineering drawings of the projects.
Upon review, and for the reasons discussed 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. § 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 petitioner has described the beneficiary's duties in only vague and non-specific terms and therefore failed
to identify the specific managerial or executive tasks he will perform on a day-to-day basis. For example, the
petitioner stated that the beneficiary will "plan, direct, coordinate the daily operation of the corporation:'
"direct the development of and approve standards and procedures," "promote the philosophy of the company:'
and assume "all aspects of the daily operation of the corporation." The petitioner did not,however, describe
the specific duties the beneficiary performs to "direct" or "coordinate" the company's affairs and the AAO
will not speculate as to the related managerial or executive duties. 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 has 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
EAC 07 008 51133
Page 6
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd,
905 F.2d 41 (2d. Cir. 1990). In addition, the AAO notes that the beneficiary's responsibilities for "obtaining
all licensing required," monitoring expenses, and "maintaining financial and operational reports," without
further explanation, suggest that he is directly involved in the day-to-day administrative and financial
operations of the company, rather than managing these activities.
Moreover, the AAO notes that several of the beneficiary's stated duties reference his responsibility for
supervising "division managers," and performing various duties related to personnel management. However,
as discussed further below, the petitioner has not established that it actually employed the individuals
identified on the submitted organizational chart at the time of filing, and never claimed to employ a "chief
financial officer," who is included among the beneficiary's subordinates in the position description.
Therefore, the beneficiary's duties with respect to the supervision of subordinate company employees can be
called into question. 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. Matter of
Ho, 19 I&N Dec. 582, 591 (BIA 1988).
It must be emphasized that the director had specifically requested a complete position description for the
beneficiary's position, including a breakdown of the number of hours devoted to his duties on a weekly basis.
Although the petitioner provided the vague job description requested above, it did not provide the requested
information regarding how the beneficiary's time is allocated among specific duties. Based on the current
record, the AAO is unable to determine whether the claimed managerial duties constitute the majority of the
beneficiary's duties, or whether the beneficiary primarily performs non-managerial administrative or
operational duties. Although specifically requested by the director" the petitioner's description of the
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial in nature,
and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C.
Cir. 1991). This failure of documentation is important because several of the beneficiary's daily tasks' do not
fall directly under traditional managerial duties as defined in the statute. Any failure to submit requested
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. §
103.2(b)(14).
Although the director specifically referenced the deficiencies of the submitted position description in the
notice of decision, neither counsel nor the petitioner makes any attempt to clarify the beneficiary's job duties
on appeal. Counsel merely submits additional documentation and suggests that the fact that the beneficiary
invested in the petitioner's projects and signed and reviewed documents on behalf of the company establishes
his employment in a managerial capacity. Counsel's assertions are not persuasive and cannot be accepted in
lieu of a detailed description of the beneficiary's actual duties and an explanation as to how those duties meet
the statutory criteria set forth at section 101(a)(44)(A) or (B) of the Act. Without documentary evidence to
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988);
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA
1980). .
The definitions of executive and managerial capacity have two separate requirements. First, the' petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions.
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities and
EAC 0700851133
Page 7
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, 1991). The AAO does not doubt that the beneficiary
exercises authority over the U.S. company as an owner and president. However, 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 (Feb. 26, 1987). The petitioner has failed to establish the actual duties performed by the
beneficiary, thus it cannot be concluded that his duties are primarily managerial or executive in nature.
Although the beneficiary is not required to supervise personnel, if it is claimed that his managerial duties
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory,
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. The petitioner indicated that the beneficiary
will direct the U.S. company "through three division managers in construction operations, sales & marketing,
and the chief financial officer." The petitioner also attached an organizational chart identifying an operations
manager, a sales manager, a sales person and an administrative assistant, but no chief financial officer. The
record contains the company's earnings report for all employees for 2005, as well as detailed general ledger
statements for 2006 and the first five months of 2007. Upon review, the record contains no evidence of
payments to the two sales employees. There is no evidence of any salary or wages paid to the administrative
assistant after February 2005. The employee identified as the operations manager received payments during
January and February 2005, as well as payments totaling approximately $800 during the months of June,
August and October 2006. The petitioner has not submitted evidence that it employed a chief financial
officer, a sales and marketing staff, or an administrative employee, and the services provided by the individual
identified as the operations manager appear to be part-time or intermittent at best.
Although the director specially referenced the lack of evidence of wages paid to the claimed employees,
counsel has not specifically addressed the director's concerns on appeal or otherwise attempted to correct the
apparent discrepancies between the organizational <:hartand the petitioner's financial records. 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. 582, 591-92 (BIA 1988).
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». Based on the above discussion, the
AAO concurs with the director that the evidence does not establish that the petitioner regularly employed
anyone other than the beneficiary and therefore he does not qualify as a "personnel manager," as
contemplated by section 101(a)(44)(A)(ii) of the Act.
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether
an individual is acting in a managerial or executive capacity, United States Citizenship and Immigration
Services (USCrS) must take into account the reasonable needs of the organization, in li'ght of the overall
purpose and stage of development of the organization.
At the time of filing, the petitioner was a three-year-old construction and property development company that
claimed to have a gross annual income of $437,331. The firm employed the beneficiary as president but has
not corroborated its claims that the claimed staff in the areas of sales and marketing, construction operations,
administration, and financial operations actually exist. While the AAO is satisfied that that the petitioner
EAC 07 008 51133
Page 8
utilizes the services of contractors to perfonn the day-to-day duties associated with designing and
constructing homes, it must be emphasized that job duties perfonned in connection with a business' sales,
marketing, finances and general administration may be deemed non-qualifying if they involve the actual
perfonnance of the function. The petitioner has not explained how the services of the claimed contracted
employees would obviate the need for the beneficiary to primarily conduct the majority of the day-to-day
administrative tasks associated with the petitioner's business. Based on the petitioner's failure to establish that
the beneficiary has a subordinate staff, it is reasonable to assume, and has not been shown otherwise, that the
beneficiary is personally perfonning these non-qualifying tasks rather than managing or supervising the
perfonnance of these routine duties by other subordinate employees. While administrative and financial duties
may be crucial to the proper functioning of the petitioner's business, they are also the daily operational tasks
that cannot be deemed managerial or executive in nature.
Based on the petitioner's representations, it does not appear that the reasonable needs of the petitioning
company might plausibly be met by the services of the beneficiary as president and independent contractors
whose duties are limited to construction services. 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 101(a)(44)(A) and (B) or the Act. As
discussed above, the petitioner has not established this essential element of eligibility.
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed
in a managerial or executive capacity. For this reason, the appeal will be dismissed.
The next issue in this matter is whether the petitioner established that it 'maintains a qualifying relationship
with the beneficiary's foreign employer. To establish a "qualifying relationship" under the Act and the
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer
are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as
"affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1). The AAO will
simultaneously address the directors' separate finding that the petitioner failed to establish that the foreign
entity is a qualifying organization doing business abroad.
The pertinent regulations at 8 C.F.R. § 214.2(1)(1)(ii) define the tenn "qualifying organization" and related
tenns as follows:
(G) Qualifying organization means a United States or foreign finn, corporation, or other
legal entity which:
(1) Meets exactly· one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate or subsidiary specified in
paragraph (l)(l)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not
required) as an employer in the United States and in at least one other
country directly or through a parent, branch, affiliate or subsidiary for the
EAC 07 00851133
Page 9
duration of the alien's stay in the United States as an intracompany
transfereer.]
(H) Doing business means the regular, systematic and continuous provision of goods
and/or services by a qualifying organization and does not include the mere presence
of an agent or office ~fthe qualifying organization in the United States and abroad
(1) Parent means a firm, corporation, or other legal entity which has subsidiaries.
(1) Branch means an operating division or office of the same organization housed in a
different location.
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact
controls the entity.
(L) Affiliate means
(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the
same share or proportion of each entity.
At the time of filing, the petitioner did not identify the foreign entity with which it claims to have a qualifying
relationship, and did not submit evidence to demonstrate that such a relationship continues to exist.
Accordingly, the director requested documentary evidence of the ownership and control of "each parent,
subsidiary, and affiliate organization of the foreign organization." The director advised that such evidence
should include copies of stock certificates, stock ledgers, articles of incorporation or similar documents. The
director also requested evidence that the foreign organization continues to be engaged in the regular,
systematic and continuous provision of goods and services.
In response, the petitioner submitted a self-prepared chart that appears to indicate a qualifying relationship
between the petitioner and a Mexican corporation, Willma, S.A. de C.V. The petitioner submitted a copy of
the U.S. company's stock certificate number 1 issuing 500 of the company's 1,000 shares to the beneficiary on
July 17, 2003, and a copy of its articles of incorporation.
With respect to the foreign entity, the only document submitted was an un-translated document that appears to
be a receipt for an annual tax filing for 2005 submitted to the Mexican government on March 31, 2006. The
document identifies the name of the filer as "Willma." No other evidence was submitted to establish that
ownership of the foreign entity or the ongoing business activities of the foreign corporation.
EAC 07 008 51133
Page 10
The director denied the petition on the separate and related grounds that the petitioner had not established: (1)
that the petitioner maintains a qualifying relationship with the foreign entity; or (2) that the foreign entity is a
qualifying organization doing business as defined in the regulations.
On appeal, counsel does not address either of these findings.
Upon review, the AAO concurs with the director's determination on both grounds. The regulation and case
law confirm that ownership and control are the factors that must be examined in determining whether a
qualifying relationship exists between United States and foreign entities for purposes of this visa
classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289 (Comm.
1982). In the context of this visa petition, ownershiprefers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595.
The petitioner has not provided sufficient evidence of the ownership and control of the U.S. company or any
evidence of the ownership and control of the foreign entity. The only fact established by the evidence
submitted is that the beneficiary owned half of the U.S. company's authorized shares at the time of
incorporation. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds
for denying the petition. 8 C.F.R. § 103.2(b)(14).
Further, the fact that the foreign entity filed a tax return for the 2005 year does not establish that the foreign
entity has been and will continue to be engaged in the regular, systematic and continuous provision of goods
and/or services. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
As the petitioner has not addressed these deficiencies on appeal, the appeal will be dismissed for these
additional reasons.
The petitioner noted that USCIS approved a previous petition to extend the beneficiary's L-IA status. It must
be emphasized that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. §
103.8(d). In making a determination of statutory eligibility, CIS is limited to the information contained in that
individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Ifthe previous nonimmigrant petition was
approved based on the same unsupported assertions that are contained in the current record, the approval
would constitute material and gross error on the part of the director. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that
may have been erroneous. See, 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). Based on the lack of required evidence of eligibility in the current record, the AAO finds
that the director was justified in departing from the previous petition approvals by denying the instant
petition.
· . ' .
EAC 07 008 51133
Page 11
Furthennore, 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 the decision. 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.