dismissed L-1A Case: Food Service

i-mg data deleted to 
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invarioa of pemnai privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
File: EAC 07 067 5 1233 Office: VERMONT SERVICE CENTER Date: JuL 2 9 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. €J 1 10 1 (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. 
(LC-<;~*+: -- 
rt P. Wiemann, Chief 
\%,*~dfninistrative Appeals Office 
EAC 07 067 51233 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its executive chef as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 1 5)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a Florida corporation, operates a bakery 
and delicatessen. It states that it is a subsidiary of Panaderia Pasteleria Bella Vista, C.A., located in 
Maracaibo, Venezuela. The beneficiary has been employed by the petitioner in L-1A status since 2002 and 
the petitioner now seeks to extend his status for two additional years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary has been 
working for the U.S. company "as an Executive" since 2002, and emphasizes that the beneficiary was 
previously granted two extensions of his L-1A status for the offered position of executive chef. The petitioner 
suggests that the language used by the director in denying the petition was subjective, and not based on the 
proper application of the regulations to the facts of the case. Citing to Mars Jewelers Znc. v. INS, 702 F. 
Supp. 1570 (N.D. Ga. 1988), the petitioner states that the regulations were not intended to limit managers or 
executives to persons who supervise a large number of persons or a large enterprise. The petitioner submits a 
brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1(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 three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 8 214.2(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)(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. 
EAC 07 067 5 1233 
Page 3 
(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 himiher 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 will be 
employed by the United States entity in a managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), defines the term "managerial capacity" as 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 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 I(a)(44)(B), defines the term "executive capacity" as 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 07 067 5 1233 
Page 4 
The nonimmigrant petition was filed on January 9, 2007. The petitioner operates a retail bakery and 
delicatessen and also provides wholesale and catering services to restaurants, hotels and resorts. In a letter 
dated January 5, 2007, the petitioner indicated that the beneficiary performs the following "essential 
functions" as executive chef: 
Controls labor cost by properly scheduling staff, improving productivity and reviewing 
daily punch report. 
Verifies that kitchen staff follow all recipes and portion servings correctly and according 
to trend and menu specifications. 
Ensures food quality by maintaining the highest standards of personal hygiene, proper 
food handling techniques, and a clean, well-maintained physical plant. 
Places food and supply orders as directed. 
Receives products and verifies invoice pricing, quantity, and that the products meets 
Palm specifications. 
Assists in training employees to company standards, policy and procedure. 
Sets excellent customer service and work examples. 
Actively participates as member of management team. 
Works a minimum of 5 days and 3 nights per week. 
Manages staffing levels and performs line checks throughout the shift. 
Maintains inventory systems. 
Posts invoices daily on Restaurant Magic System. 
Takes active role in developing and implementing daily specials to Palm standards. 
Protects and maintains all company supplies and assets according to company policies. 
Obtains and maintains up to date ServSafe and Foodservice Management Professional 
(FMP) certifications. 
Ensure that all receipts, food preparations, and plate presentations meet The Palm's 
specifications and commitment to quality. Maintain a safe, orderly and sanitized kitchen. 
The petitioner further indicated that the beneficiary is responsible for the following duties: 
Budgeting, Cost Control and Planning 
The Executive Chef is responsible for preparing budgets, analyzing and improving G&A to 
budget actuals, forecasting demand, and controlling labor and food costs, product and vendor 
selection and supply procurement. 
The Executive Chef is responsible for preparing menus for [the petitioner] with an emphasis 
on quality, quantity, setup, timing, service, and execution of large-volume cooking, guest 
relations, the sequence of service, and ensuring that professional standards are met for dining 
room personnel. 
EAC 07 067 5 1233 
Page 5 
Sanitation and Safety - the Executive Chef is responsible for the prevention of food-borne 
illness through proper handling of potentially hazardous foods, HACCP procedures, kitchen 
safety, facility sanitation, and safe food preparation, storing and safe reheating. 
On July 23, 2007, the director issued a request for additional evidence. The director requested, inter alia, 
additional evidence to establish that the beneficiary would be employed in a primarily managerial or 
executive capacity under the extended petition. Specifically, the director requested: (1) a comprehensive 
description of the beneficiary's duties with an explanation as to how the duties are managerial or executive in 
nature: (2) a list of the U.S. employees by name and job title, accompanied by a description of each 
employee's duties and a breakdown of the number of hours the employees devote to each duty on a weekly 
basis; (3) copies of the petitioner's IRS Forms 941, Employer's Quarterly Wage Report, for all four quarters 
of 2006; (4) copies of all IRS Forms W-2 and Forms 1099 issued by the petitioner in 2005 and 2006; and (5) 
copies of the petitioner's IRS Forms 1120, U.S. Corporation Income Tax Return, for 2005 and 2006. 
In response, the petitioner submitted a letter dated August 28, 2007, and the requested supporting 
documentation. The petitioner submitted an eight-page document entitled "Description of Beneficiary's 
Duties." The petitioner reiterated the same "essential functions" listed above, and added that the beneficiary 
would perform duties related to human resources, including "recruiting, selecting, hiring, training, 
developing, disciplining, evaluating and terminating all foodservice employees. The petitioner indicated that 
the position involves "human resource planning" and "developing an operations plan for the foodservice 
component" of the petitioner's business. 
The petitioner also cited to the regulatory definition of managerial capacity at 8 C.F.R. 214.2(l)(ii)(B) and 
stated that the beneficiary meets the criteria because he manages the company's kitchen operation, sets 
policies and procedures to manage the kitchen, and supervises the bakery, pastry, ice cream, specialty food, 
and catering departments. The petitioner further stated that the beneficiary has the authority to hire employees 
and supervises and controls the work of subordinate personnel identified as a bakery department manager, 
pastry manager, bakery assistant, helpers, ice cream department manager, ice cream technician, and specialty 
food manager. Finally, the petitioner stated that the beneficiary exercises discretion over day-to-day 
operations, as he "will set assignments to every employee and manager under his supervision," supervise their 
work, oversee shifts, schedule employees, and provide employee training. 
In addition, the petitioner indicated that the beneficiary meets the regulatory criteria for executive capacity set 
forth at 8 C.F.R. 9 214.2(l)(ii)(C), in that he "has established goals and policies, exercised discretionary 
decision-making authority and received supervision only by the Board of Directors in the Parent Company." 
The petitioner stated that "the majority of the Beneficiary's time is spent on duties relating to the policy or 
operational management of the Petitioner." 
The petitioner submitted an organizational chart dated July 3 1, 2007, which indicates that the beneficiary, as 
executive chef, reports to the petitioner's general manager, who in turn reports to the vice presidedchief 
executive officer. The beneficiary is depicted as supervising a total of ten employees, including the bakery 
manager, the big pastry department manager, a pastry department employee, a specialty food department 
manager, an ice cream department manager, an ice cream technician, a "bread section" employee, a bakery 
EAC 07 067 5 1233 
Page 6 
assistant and two bakery helpers. The chart also depicts a new projects division manager, a production 
manager, a technical support employee, an administration department employee, and a cash flow and billing 
employee, for a total of 18 employees. 
The petitioner submitted an employee list which provides the names, job titles, and job duties for 14 
employees. Notably, the ice cream department manager and one of the pastry department employees were not 
included on the list. The petitioner provided brief position descriptions for the remainder of the employees 
who are claimed to work under the beneficiary's supervision, as well as position descriptions for other 
employees listed on the organizational chart. All of the beneficiary's subordinates, with the exception of the 
 . 
"bakery helpers" are claimed to supervise the work of other staff in their respective departments, even those 
employees, such as the "bread section employee" and the specialty food department employee who are 
depicted as the sole employees in their departments. The bakery helpers are the only employees who are 
described as being directly involved in producing the petitioner's products. The petitioner also provided a 
"working hours schedule" listing the work schedules of the 18 employees identified on the organizational 
chart. 
Finally, the petitioner submitted the requested documentation of wages paid to its employees, including 
 . 
copies of its Forms 941 for all four quarters of 2006 and the first quarter of 2007. The petitioner also provided 
copies of its Florida Forms UCT-6, Employer's Quarterly Report, for 2006. In the fourth quarter of 2006, the 
quarter immediately preceding the filing of the instant petition, the petitioner reported a total of seven 
employees, including the production manager, the general manager, the bread section employee, the specialty 
food employee, one bakery assistant, one bakery helper, and the ice cream technician. Six of the seven 
employees earned wages consistent with full-time employment. In the first quarter of 2007, the petitioner 
reported a total of six employees. The petitioner did not submit evidence that it utilizes the services of any 
contract employees. 
The petitioner did submit copies of its IRS Forms W-2, Wage and Tax Statements, for 2005 and 2006. The 
majority of the employees listed on the organizational chart were employed by the petitioner during one or 
both of these years. However, the bakery manager, a pastry department employee, and the ice cream 
department manager, who are among the beneficiary's subordinates, last worked for the company in 2005, 
while two employees claimed to currently work under his supervision were not reported on the Forms UCT-6 
after the second quarter of 2006. 
The petitioner did not address the obvious discrepancy between its organizational chart and employee work 
schedule, which list 18 employees, and its quarterly wage reports indicating that the company employed only 
six to seven employees at the time of filing. It is evident that the remaining employees on the organizational 
chart were not hired subsequent to the filing of the petition, as many of them were employed by the petitioner 
in 2005 and during the first half of 2006. 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). Without such evidence to resolve this discrepancy, the 
organizational chart submitted in response to the request for evidence appears to be deliberately misleading. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
EAC 07 067 5 1233 
Page 7 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 
591. 
The director denied the petition on October 17,2007, concluding that the petitioner had failed to establish that 
the beneficiary would be employed in a primarily managerial or executive position under the extended 
petition. The director determined that the petitioner had not established that the beneficiary would be 
supervising a subordinate staff of managers, supervisors or professionals, or that he would function at a senior 
level within the organizational hierarchy, other than in position title. The director further observed that that 
the beneficiary's proffered salary of $41,600 is "incongruous with that of an employee who is actually 
managing other bona fide managers and professionals." The director noted that the petitioner had listed "a 
number of duties that would normally be required of or associated with a manager or executive," but that "this 
service is not convinced that the beneficiary will actually be carrying out' these duties." The director 
concluded that the beneficiary would be engaged in the non-managerial, day-to-day duties of the business, 
rather than performing the listed duties. 
On appeal, the petitioner states that it "strongly disagrees" with the director's decision. The petitioner 
emphasizes that the beneficiary has worked for the U.S. company in L-1 A status as its executive chef since 
2002, and that it "cannot consider that the Service has erroneously approved previous petitions on behalf of 
the beneficiary." The petitioner notes that the company continues to improve its performance every year and 
therefore it does not understand the director's finding that the company cannot support the beneficiary in a 
managerial or executive position at this time. 
The petitioner further contends that the director abused his discretion, made a subjective determination, and 
did not base his decision on the regulations. The petitioner asserts that the director placed undue emphasis on 
the size of the petitioning company, while the regulations impose no such restrictions on the size of the 
petitioning company. Citing Mars Jewelers Inc. v. INS, 702 F. Supp. 1570, 1573 (N.D. Ga. 1988), the 
petitioner asserts that a manager or executive need not supervise a large number of persons or a large 
enterprise. The petitioner asserts that the beneficiary supervises professionals who relieve him from the day- 
to-day operations of the business. The petitioner re-iterates the lengthy position description submitted in 
response to the request for evidence, and requests that the AAO conduct a review of the record in its entirety. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed by the United States entity in a managerial or executive capacity under the extended petition. 
However, upon review of the director's decision, the AAO finds that the reasons given for the denial are 
conclusory with few specific references to the evidence entered into the record. The AAO also notes that the 
director's conclusion that the beneficiary's proffered salary is "incongruous" with that of an employee who is 
managing managers or professionals is not supported by the statute and regulations, which contain no salary 
requirements for L-1 beneficiaries. Accordingly, the director's comment in this regard is withdrawn. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Tmsp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
EAC 07 067 5 1233 
Page 8 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Therefore, the AAO will address 
the petitioner's evidence and eligibility herein. 
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 
either in an executive or managerial capacity. Id. 
The petitioner has consistently provided a list of 16 "essential functions" performed by the beneficiary in his 
role as executive chef of the petitioner's bakery and delicatessen. A review of these "essential functions" 
suggests that the beneficiary performs a combination of first-line supervisory and operational tasks, rather 
than performing primarily managerial or executive duties. However, preliminarily, the AAO notes that there 
are three separate references in the beneficiary's job description to "The Palm," an unrelated employer. The 
reference to this unrelated employer in the beneficiary's job description raises questions regarding the origin 
of the job description and whether the information provided represents an accurate account of the 
beneficiary's actual job duties. 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. at 591. 
Nevertheless, the list of "essential tasks" includes a number of operational and administrative tasks that have 
not been shown to be managerial or executive in nature. For example, the beneficiary is responsible for 
placing food and supply orders "as directed," receiving products, verifying invoice pricing, quantity and 
quality, maintaining inventory systems, posting invoices daily into the "Restaurant Magic System," and 
developing daily specials. These duties suggest that the beneficiary is directly involved in performing 
purchasing and inventory duties that do not rise to the level of managerial or executive capacity. 
Furthermore, the beneficiary is described as performing many duties that would normally be attributed to a 
first-line supervisor, rather than a managerial or executive employee. For example, the petitioner stated that 
the beneficiary is responsible for scheduling staff, reviewing the "daily punch report," verifying that kitchen 
staff follow all recipes, assisting in training employees, performing line checks, and "setting customer service 
and work examples." The remainder of the tasks included in the list of "essential functions," such as 
maintaining personal hygiene, proper food handling techniques, and a clean kitchen, could apply to any 
employee working in the food service industry. Although the petitioner stated that the beneficiary "actively 
participates as [a] member of [the] management team," it offered no clarification as to what specific 
managerial or executive duties this responsibility would encompass. The actual duties themselves will reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
afd, 905 F.2d 41 (2d. Cir. 1990). 
Therefore, to the extent that the list of "essential functions" represents the beneficiary's actual duties, it is 
reasonable to conclude that the beneficiary's duties are not primarily managerial or executive in nature. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services or other 
non-qualifying duties 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 'I., 19 I&N Dec. 593, 604 (Comm. 1988). 
EAC 07 067 5 1233 
Page 9 
When instructed to submit a comprehensive description of the beneficiary's duties, the petitioner re-iterated 
the list of "essential functions" and added that the beneficiary's responsibilities include: hiring and firing the 
personnel who work under his supervision; exercising discretion over the petitioner's day-to-day operations; 
setting policies and procedures to manage the petitioner's kitchen operations; supervising five departments 
within the petitioner's kitchen; establishing goals and policies; exercising discretionary decision-making 
authority; and receiving supervision only from the board of directors of the parent company. The petitioner 
concluded by stating that "the majority of the beneficiary's time is spent on duties relating to the policy or 
operational management of the Petitioner." All of these newly-described duties paraphrased the statutory 
definitions of managerial and executive capacity. See sections 101(a)(44)(A) and (B) of the Act. Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language 
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Furthermore, many of these broad claims are contradicted by 
other evidence in the record. Based on the petitioner's organizational chart alone, it is evident that the 
beneficiary does not report to the parent company's board of directors. The organizational chart shows that 
the beneficiary reports to a general manager, that the general manager reports to a vice president, and that the 
vice president reports to the U.S. company's president. A review of the organizational chart and the 
petitioner's evidence regarding its staffing levels also belies the claim that the petitioner's kitchen is 
organized into five departments. Again, 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 offlo, 19 I&N Dec. at 591. 
Overall, the petitioner's descriptions of the beneficiary's duties, although lengthy, fall significantly short of 
establishing that the beneficiary would perform primarily managerial or executive duties. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. The evidence must 
substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
probative and will not establish that an organization is sufficiently complex to support an executive or 
manager position. An individual whose primary duties are those of a first-line supervisor will not be 
considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 101 (a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary primarily 
supervises managerial or supervisory employees. Instead, the record demonstrates that the beneficiary's 
subordinates primarily perform the actual day-to-day tasks of preparing the petitioner's products, rather than 
acting as supervisors themselves. Although the petitioner claimed in response to the request for evidence that 
the beneficiary manages the petitioner's bakery, pastry, ice cream specialty food and catering "departments," 
as well as the managers of four of these departments, the petitioner has not documented that it actually 
EAC 07 067 51233 
Page 10 
employed the claimed subordinate managers at the time the petition was filed, nor does it even have a catering 
department listed on its organizational chart. Furthermore, as noted above, the petitioner has documented the 
employment of only five of the ten employees identified on the petitioner's organizational chart as the 
beneficiary's subordinates. These employees include the "bread section" employee, the "specialty food" 
employee, an ice cream technician, a bakery assistant, and a bakery helper, who appears to be employed on a 
part-time basis. Although the petitioner indicates that four of these five employees perform supervisory 
duties, it is reasonable to conclude that they all in fact participate in baking products for sale to the 
petitioner's wholesale and retail customers. The petitioner's claim that the bakery helper position is the only 
position in the company involved in hands-on baking tasks is simply not credible, given the petitioner's 
staffing levels and the scope of its business. The petitioner has not provided evidence of an organizational 
structure sufficient to elevate the beneficiary to a supervisory position that is higher than a first-line 
supervisor of non-professional employees. Pursuant to section 10 1 (a)(44)(A)(iv) of the Act, the beneficiary's 
position does not qualify as primarily managerial or executive under the statutory definitions. 
Counsel correctly observes 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 $ 10 l(a)(44)(C) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(C). However, it is appropriate for CIS 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 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). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
At the time of filing, the petitioner was an 11-year-old company operating a bakery and delicatessen. The 
petitioner claims to serve retail customers, as well as wholesale customers including local markets, hotels and 
resorts. The petitioner has claimed to employ between 10 and 18 employees, but has documented the 
employment of only six to seven employees as of the date of filing. The petitioner does not claim to employ 
any cashiers, servers, sales people, or delivery drivers, although it is reasonable to expect that such employees 
would be required to operate the business. 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 six to seven staff 
members whose employment has been documented. 
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. 
Counsel cites Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the 
proposition that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act 
in a primarily managerial or executive capacity. First, the AAO notes that counsel has furnished no evidence 
to establish that the facts of the instant petition are analogous to those in Mars Jewelers, Inc., where the 
district court found in favor of the plaintiff. With respect to Mars Jewelers, the AAO is not bound to follow 
 . 
EAC 07 067 5 1233 
Page 11 
the published decision of a United States district court in matters arising within the same district. See Matter 
of K-S-, 20 I&N Dec. 7 15 (BIA 1993). Although the reasoning underlying a district judge's decision will be 
given due consideration when it is properly before the AAO, the analysis does not have to be followed as a 
matter of law. Id. at 7 19. 
In Mars Jewelers, Inc., the court emphasized that the former INS should not place undue emphasis on the size 
of a petitioner's business operations in its review of an alien's claimed managerial or executive capacity. The 
AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium-size 
businesses. However, consistent with the statute, the AAO has required the petitioner to establish that the 
beneficiary's position consists of primarily managerial or executive duties and that the petitioner will have 
sufficient personnel to relieve the beneficiary from performing operational and/or administrative tasks. Our 
holding is based on the conclusion that the beneficiary is not primarily performing managerial or executive 
duties; our decision does not rest on the size of the petitioning entity. 
Finally, the AAO acknowledges counsel's assertion that the director erred in denying the instant petition for 
an extension of the beneficiary's status when CIS previously approved two extensions of the beneficiary's L- 
1A status on similar facts. A prior approval does not preclude CIS from denying an extension of the original 
visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). It must be emphasized that that each nonimmigrant petition filing is 
a separate proceeding with a separate record and a separate burden of proof. See 8 C.F.R. 5 103.8(d). In 
making a determination of statutory eligibility, USCIS is limited to the information contained in that 
individual record of proceeding. See 8 C.F.R. 103.2(b)(16)(ii). Despite any number of previously approved 
petitions, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to 
meet its burden of proof in a subsequent petition. See section 29 1 of the Act. 
If other nonimmigrant petitions were approved based on the same unsupported assertions that are contained in 
the current record, the approvals would constitute material and gross error on the part of the director. The 
AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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 nonimmigrant petitions filed by 
the petitioner for similar positions, 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.), afd, 248 F.3d 1139 
(5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity under the extended petition. Accordingly, the appeal will be 
dismissed. 
EAC 07 067 51233 
Page 12 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 4 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.