dismissed L-1A Case: Import/Export

U.S. Department of Homeland Security 
identiQring data deleted to 
prevent clettr1y lmwanrrnted 
lmgsion of paend privacy 
U.S. Citizenship and Immigration Ser 
Office of Administrative Appeals, MS 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAc 08 182 5 1669 Office: VERMONT SERVICE CENTER Date: 
 OCT 8 o 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Fonn L290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
ief, Administrative Appeals Office 
EAC 08 1 82 5 1669 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager as an 
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a Florida corporation, states that it is an 
importlexport business. It claims to be an affiliate of Importadora Creditos Quezada C. Ltda., located in 
Guayaquil, Ecuador. The petitioner has employed the beneficiary in L-1A since June 2003 and now seeks to 
extend his status for two additional years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be 
employed by the U.S. entity 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, counsel for the petitioner emphasizes that the 
beneficiary has held L-1A status since 2003. Counsel contends that U.S. Citizenship and Immigration 
Services (USCIS) is inconsistent in its interpretations, given that "the position has been sustainably [sic] 
considered managerial or executive, or that it involves specialized knowledge." Counsel further asserts that 
the director "failed to request detailed evidence that should have considered necessary to evaluate the 
petition," and erroneously based the decision, in part, on the beneficiary's salary and educational credentials. 
Counsel submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within 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. tj 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. 
(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 himlher to perform the intended 
EAC 08 182 5 1669 
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 sole issue addressed by the director is whether the petitioner established that it will employ the 
beneficiary in a primarily managerial or executive capacity under the extended petition. 
Section 101(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 lOl(a)(44)(B) of the Act, 8 U.S.C. 9 1101(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. 
The petitioner filed the nonimmigrant petition on June 18, 2008. The petitioner stated on Form 1-129, Petition 
for a Nonimmigrant Worker, that it has two employees. In a letter dated June 9, 2008, the petitioner stated that 
the beneficiary "will be responsible for the general import operations in the USA," and for coordinating its 
"exporting ventures from USA to Ecuador." The petitioner explained that the foreign entity is a leading 
importer and distributor of major-brand American consumer goods in Ecuador. The petitioner indicated that 
the beneficiary performs the following duties in his position as general manager of the U.S. company: 
EAC 08 182 5 1669 
Page 4 
High level executive and management position responsible for the managerial responsibilities 
of the subsidiary in the US. The General Manager is responsible for the general operations, 
management of finances, human resources, physical plant and other areas of the company in 
the US. It is a position of wide discretion under the general supervision of the CEO of the 
Corporation. General written and verbal reports are required of the operations, finances, 
human resources, physical plant and other areas of the business. Has hiring and firing 
authority of the personnel under his supervision. Will plan and identify goals, priorities and 
resources to meet the expectations of corporate headquarters. Will execute according to 
corporate standards and goals. 
The petitioner further indicated that the position requires "four years of import and export experience, four 
years in a management position. Complete knowledge and experience in Latin American and USA import 
business, and knowledge of the products imported by [the foreign entity]." 
In support of the petition, the petitioner submitted a copy of its Form 1120, U.S. Corporation Income Tax 
Return, for 2006. The petitioner reported gross receipts or sales of $165,000, and paid salaries and wages of 
$35,734, which is less than the beneficiary's proffered salary of approximately $42,000. 
The director issued a request for additional evidence on July 28,2008, in which he instructed the petitioner to 
submit additional evidence to establish the beneficiary will be employed in a managerial/executive capacity. 
Specifically, the director requested: (1) a comprehensive description of the beneficiary's duties indicating how 
the duties will be managerial or executive in nature; (2) a list of United States employees which identifies 
each employee by name and position title; (3) a complete position description for all U.S. employees, with a 
breakdown of the number of hours devoted to each job duty on a weekly basis; (4) copies of educational 
credentials for the beneficiary and his subordinates; (5) copies of the petitioner's IRS Forms 94 1, Employer's 
Quarterly Federal Tax Return, for the last six quarters; and (6) copies of all IRS Forms W-2, W-3, 1099 and 
1096 issued by the U.S. entity in 2007. 
In a response dated September 3, 2008, the petitioner stated that the beneficiary is responsible for "general 
management and import operations in the USA." The petitioner reiterated the job description previously 
provided and further stated: 
As an Executive General Manager and Vice-President in the US, he exercises authority in 
regard to high top level decisions and policy making. [The beneficiary] is the officer that 
coordinates with other international subsidiaries in Ecuador and in the US. He is responsible 
for developing the strategies of the business to reach our goals and comply with our policies. 
He also reviews the policies and develops appropriate plans necessary to ensure corporate 
standards. He formulates plans to improve communication between the US and the 
subsidiaries in Ecuador. As a general manager in the US, he has autonomous control and 
exercises wide latitudes and discretion in the decision making process, establishing the most 
advantageous courses of action for the successful management and direction of our 
international development activities in the US. 
The petitioner provided additional information regarding the structure of its group of companies, which is 
primarily based in Ecuador. The petitioner noted that the companies in the group's commerce and automotive 
divisions import merchandise from the United States and China, and that the U.S. subsidiary was established 
EAC 08 182 51669 
Page 5 
"to attend the different needs that the companies of [the petitioner's group] has." 
 With respect to the 
petitioner's staffing needs, the petitioner explained as follows: 
The management of the personnel at an international level is conducted from headquarters in 
Ecuador. Local personnel needs are met by hiring temporary employees by contract and are 
managed by the local executive general manager, [the beneficiary]. He has the authority to 
hire and fire. This personnel is generally carried out by independent contractors that take care 
of all the skilled and non-skilled workers needed. [The beneficiary], Executive General 
manager and Vice-President, is in charge of all operation and administration of the subsidiary 
in Florida. The presence of [the beneficiary] in the USA is essential due to the fact that we are 
reorganizing our operations in the USA. Due to the radical changes happening in the global 
market it was imperative to reduce our operations temporarily and transition to automotive 
vehicles and parts, imports and exports. The decline of real state [sic] values in the USA is 
opening new doors to our real estate division. 
The petitioner provided the requested copies of its IRS Forms 941, W-2 and W-3, which confirm that the 
beneficiary was the only employee of the U.S. company in 2007 and during the first half of 2008. The 
petitioner did not submit copies of an IRS Forms 1099 or any other evidence of payments to contractors. 
The director denied the petition on October 30, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director emphasized that, despite the petitioner's claim that the beneficiary has two 
employees, the evidence demonstrates that the beneficiary is the sole employee of the U.S. company. The 
director observed that the position description provided for the beneficiary merely identifies general 
managerial functions and does not identify what specific duties he performs. The director concluded that the 
beneficiary, notwithstanding his managerial job title, would likely be required to perform all of the non- 
managerial duties of the company as the petitioner's only employee. 
The director also noted in his decision that the beneficiary's salary of $36,734 "does not appear to be 
commensurate with a bona fide managerial or executive position," and that the petitioner had not established 
whether he possesses a college degree or whether his position requires a degree. The AAO notes, however, that 
a beneficiary's salary is an admissibility factor and not a criterion to be used in determining his or her prospective 
employment capacity. The director's finding with regard to the latter is not supported by any statute, regulations 
or precedent decision. Similarly, there is no statutory or regulatory requirement that the beneficiary of an L-1A 
visa petition possess a college degree or serve in a position requiring such a degree. The director's comments 
regarding the beneficiary's salary and educational qualifications are therefore withdrawn. 
On appeal, counsel for the petitioner asserts that the director's adverse decision is inconsistent with USCIS's 
prior determinations that the beneficiary's position is in a managerial or executive capacity, and argues that 
the director should not have "evaded and ignored" his own previous evaluation in a case involving the same 
petitioner, beneficiary and position. 
Counsel further states that the director "failed to request detailed evidence that should have considered 
necessary to evaluate the petition." The AAO notes that counsel does not specifL what "detailed evidence" 
should have been requested, nor does the petitioner submit any evidence on appeal that was not previously 
provided for review. 
EAC 08 182 51669 
Page 6 
Counsel further cites to the statutory definition of managerial capacity and precedent decisions interpreting 
the definition, and states: 
[The beneficiary], according to his job description has maximum discretionary decision 
making power as the head executive officer of the organization in the United States. He holds 
the position of Vice-President in the corporate ladder for the subsidiary in the United States. 
In an executive fashion he is the head of the corporation in the US. Due to the economic 
crisis, and the transformation of international markets and domestic markets in the US, 
business has slowed down, but this does not mean that the company is ready to give up their 
operations in the United States; on the contrary, their exists plans to extend their operations in 
the area of auto industry, and commercial real estate. The Service has consistently accepted 
the job description as a position classified under the category of Executive and Managerial. 
Managing employees is not the main criteria to hold a position executive/managerial. . . . 
most of the operations in the US are handled by contractors that move, transport and ship 
products. 
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 
either in an executive or managerial capacity. Id. 
Despite multiple opportunities to provide the detailed description of the beneficiary's duties required by the 
regulations, none of the submitted job descriptions address the specific managerial or executive job duties to 
be performed by the beneficiary in the position of general manager. The petitioner's initial description stated 
that the beneficiary is responsible for "the managerial responsibilities of the subsidiary," including "general 
operations, management of finances, human resources, physical plant" and "other areas," as well as hiring and 
firing personnel, and identifying "goals, priorities and resources." The petitioner cannot establish that the 
beneficiary performs primarily managerial duties by assigning a managerial job title to his position and 
literally stating that he performs "the managerial responsibilities" of the company. Rather, the petitioner is 
required to explain with specificity what his actual managerial responsibilities are and what tasks he performs 
on a day-to-day basis. 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), aj'd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 1 88942 at *5 (S.D.N.Y.) 
The director reasonably advised the petitioner that the initial position description was not sufficiently detailed, 
and requested a comprehensive description of the beneficiary's duties. The director also requested complete 
position descriptions for all employees of the company, and a breakdown of the number of hours each 
employee devotes to his or her job duties on a weekly basis. As the beneficiary is an employee of the 
company, this request clearly applied to his position. The job description provided in response to the director's 
request could not reasonably be considered "comprehensive" by any interpretation, and did not include the 
requested breakdown of the time the beneficiary devotes to specific duties. Any failure to submit requested 
EAC 08 182 51669 
Page 7 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 
103.2(b)(14). Therefore, the petitioner's claim that the beneficiary will be employed in primarily managerial 
or executive capacity fails on an evidentiary basis. 
In response to the director's request for a comprehensive description of the beneficiary's duties, the petitioner 
reiterated the initial position description and added that the beneficiary "exercises authority in regard to high 
top level decisions and policy making"; "develops strategies of the business to meet our goals''; "reviews the 
policies and develops appropriate plans necessary to ensure corporate standards"; "formulates plans to 
improve communication"; "has autonomous control and exercises wide latitudes and discretion in the decision 
making process"; and is responsible for "the successful management and direction of our international 
development activities in the US." This job description offered no additional insight into the nature of the 
duties the beneficiary is required to perform on a day-to-day basis as the general manager and sole employee 
of the U.S. company. The petitioner offered no concrete examples of specific plans, policies, or strategies 
developed by the beneficiary, or any indication of the types of decisions he makes on a day-to-day basis. 
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 true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1 108. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). While the AAO does not doubt that the beneficiary would exercise 
discretion over whatever activities are carried out by the U.S. company as its general manager and sole 
employee, the petitioner has not established what tasks comprise his actual duties, such that they could be 
classified as managerial or executive in nature. USCIS will not accept a vague job description and speculate 
as to what qualifying duties the beneficiary may perform within the context of the petitioner's business. 
Beyond the required description of the beneficiary's job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's actual 
duties and role in a business. 
Here, the AAO's analysis is restricted by a lack of evidence pertaining to the nature of the U.S. company's 
activities. The petitioner explains that the foreign entity established the U.S. subsidiary to facilitate the export 
of goods from the United States to Ecuador, but it is not entirely clear what role the U.S. company plays in 
dealing with U.S. suppliers or coordinating export activities. The petitioner claims to rely on independent 
contractors to meets its personnel needs, but there is no evidence in the record of any payments to contractors. 
The petitioner did not respond to the director's request for copies of IRS Forms 1099 or 1096 for 2007, and 
the petitioner's IRS Form 1120, U.S. Corporation Income Tax Return, does not reflect any payments to 
outside employees, other than $480 for "temporary help." Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
EAC 08 1 82 5 1669 
Page' 8 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
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 9 101(a)(44)(C) of the Act, 8 U.S.C. 9 1 10 1 (a)(44)(C). However, in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "may properly 
consider an organization's small size as one factor in assessing whether its operations are substantial enough 
to support a manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 13 13, 1316 (9th 
Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. 
Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 
29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to consider the size of the petitioning company 
in conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would 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 USCIS 
notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
Here, the petitioner states that it operates a nine-year-old import-export company with sales of $1.34 million 
and two employees. The petitioner's latest tax return shows that the company has one employee and sales of 
$165,000. The petitioner states that the beneficiary devotes all of his time to policy-making and high-level 
planning and decision-making, but it has opted not to provide a description of his day-to-day job duties. The 
petitioner claims that independent contractors perform the non-managerial functions of the company, but it 
has neither presented evidence to document the existence of these employees nor identified the services such 
individuals provide. Absent some evidence as to who actually performs the non-managerial, day-to-day 
operational and administrative activities associated with operating an import and export company, it is 
reasonable to assume, and has not been shown otherwise, that the beneficiary, as the petitioner's sole 
employee, performs such duties. 
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. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 9 1 10 1 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The petitioner does not claim that the beneficiary qualifies for the benefit sought 
based on his supervision of subordinate personnel, and the record does not support a finding that he 
supervises any subordinate professional, managers or supervisors. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
EAC 08 182 5 1669 
Page 9 
essential function, the petitioner provide a detailed job description that identifies the function with specificity, 
articulates the essential nature of the function, and establishes the proportion of the beneficiary's daily duties 
attributed to managing the essential function. 
 8 C.F.R. $ 214.2(1)(3)(ii). In addition, the petitioner's 
description of the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather 
than performs the duties related to the function. 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. The 
fact that the beneficiary is the only employee working for the company does not elevate his position to that of 
a function manager. In such a situation, other employees would carry out the functions of the organization, 
even though those employees may not be directly under the function manager's supervision. The addition of 
the concept of a "function manager" by the Immigration Act of 1990 simply eliminates the requirement that a 
beneficiary must directly supervise subordinate employees to establish employment in a managerial capacity. 
However, the statute continues to require that an employee perform primarily managerial or executive duties 
in order to qualify for this visa classification. Again, the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Moreover, federal courts continue to give deference to USCIS's interpretation of the concept of "function 
manager," especially when considering individuals who primarily conduct the business of an organization or 
when the petitioner fails to establish what proportion of an employee's duties might be managerial as opposed 
to operational. See Bopg Ltd. v. INS, 67 F.3d 305(Table), 1995 WL 576839 at "5 (9th Cir. 
1995)(unpublished)(citing to Matter of Church Scientology Int'l and finding an employee who primarily 
performs operational tasks is not a managerial or executive employee); see also, IKEA US, Inc. v. US. Dept. 
of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999); Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C.Cir. 
1991). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. While the beneficiary's job 
description borrows liberally from the statutory definition of "executive capacity," the facts of this case do not 
support a finding that his actual duties are primarily focused on the broad policies of the U.S. company. 
Overall, while the AAO does not doubt that the beneficiary has authority to make decisions with respect to 
the management of the United States entity, the record does not support a conclusion that his duties are 
primarily managerial or executive in nature. The fact that the beneficiary manages a business, regardless of its 
size, 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). 
EAC 08 182 51669 
Page 10 
On appeal, counsel for the petitioner emphasizes that the beneficiary was previously granted L-1A status on 
two occasions and asserts that the director purposefully and erroneously "evaded and ignored" USCIS's prior 
determination that the beneficiary's position with the petitioner is a qualifying managerial or executive 
position. Counsel suggests that the prior approvals must be given deference in matters relating to an 
extension of nonimmigrant petition validity involving the same parties and the same underlying facts. 
The record does show that the beneficiary has held L-IA status for five years and that his most recent 
approval was granted in June 2006. It must be emphasized that that each petition filing is a separate 
proceeding with a separate record. 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. 
1032(b)(16)(ii). The facts of the instant matter indicate that the beneficiary has been the petitioner's sole 
employee since at least 2005, and the petitioner acknowledges a "slowdown" in its level of activity and a "re- 
organization" of the U.S. company's operations. Accordingly, the AAO finds that the director's close analysis 
and detailed request for evidence were appropriate in light of the petitioner's evidentiary burden to establish 
that the beneficiary has been and will continue to be performing primarily managerial and executive duties. 
While USCIS previously approved two petitions for L-1A status filed on behalf of the beneficiary, the prior 
approvals do not preclude USCIS from denying an extension of the original visa petition based on a 
reassessment of the beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 
1240482 (5th Cir. 2004). If the previous 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. Due to the lack of evidence of eligibility in the present record, the 
AAO finds that the director was justified in departing from the previous approvals by denying the present 
request to extend the beneficiary's status. As discussed above, the evidence submitted fails to describe the 
beneficiary's actual job duties in detail as required by 8 C.F.R. 5 214.2(1)(3)(ii) and is insufficient to establish 
that the beneficiary would be employed in a managerial or executive capacity. 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Lfd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 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 291 of the Act. 
The AAO also acknowledges the petitioner's claim that the U.S. company is planning a re-organization and 
expansion of its business activities. However, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved based on speculation of future eligibility or 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Mutter ofKatigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The petitioner has not submitted evidence on appeal to overcome the director's determination that the 
beneficiary will not be employed in a managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.