dismissed L-1A Case: Investment Services

U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLICcopy
FILE: EAC 07 048 51447 Office: VERMONT SERVICE CENTER Date: HOV 0 6 ZOOT
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(l5)(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
Vdministrative Appeals Office
www.uscis.gov
EAC 07 04851447
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 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, a Texas corporation authorized to do business in
New York, states that it is engaged in retail/wholesale investment services. It claims to be a subsidiary of
Faith Associates, located in Karachi, Pakistan. The beneficiary was initially granted L-IA status in
November 2002 and was subsequently granted two extensions of stay. The petitioner now seeks to extend the
beneficiary's status for three additional years.
The director denied the petition on May 14, 2007, concluding that the petitioner failed to establish that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director noted discrepancies in the record regarding the nature of the business operated by the petitioner,
and also observed that photographs of the U.S. company raise questions regarding "the veracity of the instant
petitioning entity as a functioning business entity for immigration purposes."
On appeal, counsel for the petitioner asserts that the evidence submitted in support of the petition clearly
demonstrates the nature of the petitioner's business, the number of subordinate employees working for the
company, and the managerial nature of the beneficiary's position. Counsel submits a brief in support of the
appeal.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United States, a
firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the.
beneficiary for one continuous year. Furthermore, 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. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
--------------------------- - ~
EAC 07 04851447
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(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
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The primary addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1 101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the e,mployeeprimarily:
(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. § 1IOl(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
(j.v) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
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The nonimmigrant petition was filed on November 20, 2006. The petitioner indicated on Form 1-129 that the
U.S. company has eight employees, and stated its intention to continue to employ the beneficiary as its
president. ill a letter dated November 8, 2006, the petitioner described the beneficiary's proposed duties as
follows:
As President and Executive Director, he is responsible for overall direction and operation of
the company. He is involved in all facets of the business, including new hires of the
management staff, establishment of financial relations, business expenditures and corporate
planning and strategy.
* * *
[The beneficiary] is responsible for overseeing the entire operation. He has full discretion to
make all financial decisions, hiring & firing of managers, and executive decisions concerning
the welfare of [the petitioner].
The petitioner stated in its letter that the company employs a staff of five employees and is involved in the
"wholesale industry." The petitioner submitted an organizational chart for the U.S. company which identifies
a total of five employees including the beneficiary, a vice president, a marketing-sales employee, an office
administration employee, and a sales-retail employee. The chart represents three lower-level "staff' positions
which appear to be vacant.
The director issued a request for additional evidence on January 4,2007. In part, the director requested that
the petitioner submit the following: (1) a comprehensive description of the beneficiary's duties that indicates
how such duties will be managerial or executive in nature; (2) a list of the U.S. company's employees,
accompanied by a detailed description of each employee's duties and a breakdown of the number of hours
devoted to each of the employees' job duties on a weekly basis; (3) payroll records for the months of October
and November 2006; (4) a copy of the U.S. company's IRS Form 1120, U.S. Corporation Income Tax Return;
(5) copies of IRS Form 941 for the first three quarters of 2006; and (6) copies of all IRS Forms W-2 and 1099
issued by the company in 2005.
ill a response received on March 28, 2007, the petitioner submitted the following description of the
beneficiary's duties:
He is responsible for overseeing the management of the company. Responsibilities include
defining the objectives of the company and directing the overall operations of the U.s.
Company; He plans, develops, and implements company policy; Responsible for establishing
and maintaining budgets, meeting profitability levels, and ensuring the overall growth of the
company; Reviews activity reports and financial statements to determine progress and status
in attaining objectives [and] revises objectives and plans in accordance with current
conditions; He has full authority to make executive decisions such as determining how and
when the company will expand into new markets. He is involved in the establishment of
financial relations, business expenditures, and corporate planning and strategy. He has wide
EAC 07 04851447
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discretionary powers to make decisions and hiring and when necessary firing any personnel
in the company; Delegates to subordinate corporate officers and managers authority for
administrating activities and operations under their control; Meets with management to
discuss operational problems or explain procedural changes or practices.
Time spent on duties 100%
[The beneficiary] is in charge of overseeing a company that operates a retail establishment. It
is necessary that he has extensive management and marketing experience to oversee
operations. He oversees the Vice President/General Manager who in turn supervises
professional managerial staff.
The petitioner stated that the beneficiary devotes 60 percent of his time to "management" duties including
overseeing management, recruiting and terminating employees, and liaising with the general manager to
oversee daily activities and to establish procedures and policies. The petitioner indicated that an additional 20
percent of the beneficiary's time is spent on contract negotiations, including final approval of contracts with
vendors and large customer orders. Finally, the petitioner stated that the remaining 20 percent of the
beneficiary's time is spent on "financials" including approving business expenditures and budgets, reviewing
balance sheets and profit and loss statements, and preparing and filing tax returns.
The petitioner indicated that the company's vice president/general manager has a bachelor's degree, and that
he directs the activities of subordinate managerial personnel, maintains employment records, ensures
compliance with company policies and procedures, delegates tasks, meets with managers to discuss
subordinate employees, participates in formulating policies and objectives, reviews activities and operations
of the business, reviews financials, budgets and profit and loss statements, and meets with an accountant to
file tax returns.
The petitioner indicated that its sales and marketing manager has a master's degree in business administration
and is in charge of developing marketing strategies, sales, advertising, promotion, pricing and product
development, identifying potential markets for expansion, coordinating sales and promotions, and overseeing
the sales team. Finally, the petitioner identified two sales representatives who make sales calls, keep sales
records, sell goods to wholesalers and retail businesses and individuals, solicit orders from established clients,
and secure new customers. The AAO notes that the individuals identified as sales representatives were
initially identified as holding the positions of "sales-retail" and "office administration" on the petitioner's
organizational chart, and their positions were represented as being lateral to that held by the sales and
marketing manager.
The petitioner also provided the requested IRS Forms 941 and W-2 and copies of its New York State
quarterly reports for 2006. The record shows that the petitioner employed all five employees during the
fourth quarter of 2006, however, only four workers were reported for the month of December, as one of the
sales representatives was not paid that month. Overall, the petitioner employed three people during the first
five months of 2006, one worker in June 2006, three workers in July and August, five workers from
September through November, and four workers in December. During the months in which they were
EAC 07 048 51447
Page 6
employed, the vice president/general manager, and both sales representatives all earned the same salary of
$1,000 per month.
The director denied the petition on May 14, 2007, concluding that the petitioner did not establish that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director found that the evidence was insufficient to establish that the beneficiary's subordinates are
employed by the company on a full-time basis, and further found that the petitioner had not demonstrated that
the beneficiary would manage a subordinate staff of professional employees. The director concluded that "as
it is not clear who is providing the goods and full-time services of the United States operation to its
customer/clients besides the beneficiary, it seems likely that the beneficiary will perform or help to perform
these duties in light of your current staffing arrangement." The director further observed that the petitioner
had not adequately responded to the director's request for a comprehensive description of the beneficiary's
duties and the amount of time he devotes to each duty.
In addition, the director addressed a discrepancy regarding the nature of the petitioner's business, noting that
the petitioner described itself as a retail and wholesale investment company, while a telephone directory
submitted by the petitioner indicated that the company is an exporter of color dyes and pigments.
On appeal, counsel for the petitioner asserts that the evidence submitted clearly shows that the petitioner
employs five people and is engaged in the export of industrial and commercial supplies as part of its
wholesale business. Counsel asserts that the petitioner did in fact provide a detailed description of the
beneficiary's duties and indicated the amount of time he devotes to each duty, as requested by the director.
Counsel asserts that, contrary to the director's findings, the record shows that the sales manager and two sales
people provide the goods and services of the company, while the beneficiary is primarily responsible for
supervising a staff of subordinate managerial and supervisory employees.
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
established that the beneficiary would 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(l)(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 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 show that the beneficiary primarily performs these specified responsibilities and does not spend a
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table),
1991 WL 144470 (9th Cir. July 30, 1991).
As noted by the director, the petitioner has provided a vague, nonspecific position description that fails to
identify the specific managerial or executive duties performed by the beneficiary or the amount of time he
devotes to such duties. For example, petitioner's statements that the beneficiary is responsible for overseeing
the management bfthe company, defining objectives, directing the overall operations, implementing company
EAC 07 04851447
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policy, making executive decisions, ensuring the overall growth of the company and reviewing activity
reports convey little understanding of the actual duties the beneficiary performs on a day-to-day basis as
president of the petitioning company. Many of these duties simply paraphrase the statutory definition of
executive capacity. See section 101(a)(44)(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), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5
(S.D.N.Y.). 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. at 1108.
Although the petitioner provided a breakdown of how the beneficiary would allocate his time, the petitioner
failed to identify the amount of time devoted to specific tasks, and instead indicated that the beneficiary
would spend 60 percent of his time to "overseeing the management of the company." Again, specifics are
clearly an important indication of whether a beneficiary's duties involve specialized knowledge, otherwise
meeting the definitions would simply be a matter of reiterating the regulations. Id. Furthermore, the
petitioner indicates that the beneficiary devotes 20 percent of his time to "financials," but also states that his
subordinate devotes thirty percent of her time to the identical finance-related duties. Beyond these duties,
there is considerable overlap between the beneficiary's duties and the vice presidents' duties, and the AAO
finds it reasonable to question whether a four- or five-person company would plausibly require two
employees to perform the same claimed managerial and executive 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 ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
Moreover, a review of the supporting evidence submitted, including correspondence related to the petitioner's
export activities, reveals that the beneficiary is directly involved in routine aspects of the business such as
requesting quotes from potential suppliers, purchasing goods, completing sales transactions, and making
shipping and delivery arrangements. These are the daily operational tasks inherent to operating the petitioner's
business, and do not fall under the statutory definitions of managerial or executive capacity. Since none of
these duties were included in the position description provided by the petitioner, it is impossible to estimate
how much time the beneficiary may devote to such non-qualifying tasks. The supporting evidence submitted
raises questions as to whether the petitioner provided a complete and accurate account of the beneficiary's
position.
By statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive
or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 8 U.S.C. § 1 101(a)(44). 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). Therefore, while the beneficiary in this matter evidently exercises
discretion over the U.S. business as its president, the petitioner must still establish that he is not primarily
involved in performing the company's day-to-day operations. Overall, the evidence submitted suggests that
the beneficiary performs both managerial and operational tasks, but the petitioner has failed to provide any
meaningful information to quantify the time the beneficiary spends on them. This failure of documentation is
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important because some of the beneficiary's daily tasks, as discussed above, do not fall directly under
traditional managerial duties as defined in the statute. For this reason, the AAO cannot detennine whether the
beneficiary is primarily perfonning the duties of a manager or executive. See, e.g., IKEA US, Inc. v. Us.
Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining
the claimed managerial capacity of a beneficiary, including the beneficiary's duties, the petitioner's
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other
employees to relieve the beneficiary from perfonning 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 petitioner claims that the beneficiary will manage at least one subordinate managerial employee, the
vice president/general manager. The AAO notes that this employee was initially identified on the petitioner's
organizational chart as the only supervisory employee working under the beneficiary, and was initially shown
to be supervising an office administrator, a marketing-sales employee, and a sales-retail employee. In
response to the request for evidence, the petitioner elevated the marketing-sales employee to the position of
sales and marketing manager, and indicated that the individuals previously identified as holding the positions
of office administrator and retail sales were both sales representatives responsible for "making sales calls."
The petitioner provided no explanation for the change in the job titles and job duties of these employees. It is
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA
1988).
As noted above, the director also addressed some confusion regarding the nature of the petitioner's business.
A detennination regarding the nature of the business is essential to determining whether the submitted
position descriptions for the beneficiary and his subordinates are credible, and in determining whether the
subordinate staff could plausibly relieve the beneficiary from performing non-managerial and non-executive
duties associated with the business. 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 § 101(a)(44)(C) of the Act, 8 U.S.c. § 1101(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 perfonn 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. !d.
The director noted that the petitioner described itself as a retail and wholesale investment company, while a
telephone directory submitted by the petitioner indicated that the company is an exporter of color dyes and
pigments. The AAO notes that the record contains a business plan for the petitioner indicating that the
company is a wholesaler of miscellaneous grocery items, soda and telephone cards to grocery stores. The
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petitioner has submitted a price list for these types of items and three invoices showing sales of miscellaneous
items to grocery stores. The record also contains evidence that the petitioner has purchased computer
equipment and electric pumps for sale and export overseas, although this evidence represents relatively few
transactions. A yellow pages directory listing identifies the petitioner as an "exporter," while a separate
directory lists the company as a provider of chemicals, dyes and related products. The petitioner's profit and
loss statement for the year ended September 2006 indicates that the company derived all of its income of
$331,398.55 from "fees" with a deduction for food sales of $-266.74. The petitioner's accompanying
transaction detail for the same year shows frequent purchases of phone cards, beverages, snack foods, bakery
and dairy items. Finally, the petitioner stated in response to the r~quest for evidence that the beneficiary "is in
charge of overseeing a company that operates a retail establishment."
Based on the petitioner's evidence and representations, the petitioning company appears to be involved in no
less than four different types of business activities. However, although the petitioner indicates that the
beneficiary "oversees a company that operates a retail establishment," the petitioner has not provided
evidence that it actually leases, owns or operates a retail store. The petitioner did initially claim to employ a
retail sales employee, and its purchases would be consistent with the operation of a store. Although the
petitioner indicates that it is engaged in the wholesale of grocery and food items to other wholesalers and
retailers, it has not indicated that it has any employees engaged in purchasing, warehousing, shipping, or
delivery of goods, nor does it appear that the petitioner has premises for storing such goods. The record
contains evidence that the petitioner has purchased and exported computer and industrial equipment in small
quantities, but as noted above, the beneficiary appears to be directly involved in these activities. Again, the
petitioner does not indicate that it has employees who perform duties related with purchasing or exporting of
goods. 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 ofHo, 19
I&N Dec. 582, 591 (BIA 1988).
Without a clear explanation and evidence of the nature and scope of the petitioner's business, it is difficult to
properly evaluate the petitioner's claims regarding the duties performed by the beneficiary and his
subordinates. 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) ofthe Act.
The petitioner has not established that the reasonable needs of a company engaged in this array of retail,
wholesale and export activities would reasonably be met a president, a vice president, a sales and marketing
manager and only one or two sales people. In the present matter, the totality of the record does not support a
conclusion that the beneficiary's subordinates are supervisors, managers, or professionals. Instead, the record
indicates that the beneficiary's subordinates would be required to perform the actual day-to-day tasks of
operating the petitioner's various business functions and are not managers or supervisors themselves.
Furthermore, as noted by the director, the record does not clearly establish that the vice president, who earned
$10,000 in 2006 and $7,500 in 2005, was employed on a full-time basis. In addition, the evidence shows that
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the petitioner's staff size was reduced from five employees to four employees at approximately the same time
the petition was filed.
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) of the Act. As discussed above, the petitioner has not established this
essential element of eligibility.
Overall, the petitioner's claims are undermined by its failure to provide a detailed description of the
beneficiary's duties, its inconsistent statements regarding its organizational structure, and the discrepancies in
the evidence submitted regarding the nature and scope of the petitioner's business. Based on these
deficiencies, the AAO is unable to determine the actual duties performed by the beneficiary and his
subordinates, and cannot conclude that the beneficiary would be employed in a primarily managerial or
executive capacity. Accordingly, the appeal will be dismissed.
A remaining issue in this matter concerns photographs of the petitioning entity submitted in response to the
request for evidence. In his decision dated May 14, 2007, the director acknowledged that the evidence
submitted in response to the request for evidence supported the petitioner's claim that the U.S. entity is
actively doing business. However, the director made the following observations regarding photographs
submitted by the petitioning entity:
The photographs you submitted in response to this service's request for evidence show the
inside and outside of a suburban locale with no readily apparent customers; only the individuals
you highlight as being your current employees are shown working at the United States entity by
being on the telephone. It is also noted that the photograph indicating the outside of the
business appears to show a photocopied paper sign taped to a front glass door. Therefore, the
veracity of the instant petitioning entity as a functioning business entity for immigration
purposes can be called into question....
On appeal, counsel for the petitioner objects to the director's findings and notes that "the fact the Petitioner
submitted photographs showing no customers and a photograph showing that it has a paper sign on the
business does not call into question whether the Petitioner is actually a functioning business entity.tI Counsel
observes that the director acknowledged that the evidence submitted in response to the request for evidence
supported the petitioner's claim that it is actively doing business. Counsel asserts that the director's finding
was therefore contradictory.
U on review, the hoto a hs submitted do not clearly indicate that the premises shown are located at _
which incidentally, is also indicated as the beneficiary's
residential address on Form 1-129. The single photograph of the building's exterior does not indicate a street
address, and the fact that the petitioner has covered. what appears to be a permanent sign on the front door
with a paper sign is significant, considering that the petitioner claims to have been leasing its premises since
January 2003. Again, doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation
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Page 11
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. The evidence submitted does show that the petitioner has been making rent
payments pursuant to the terms of its lease. However, the premises depicted would also appear to be
inconsistent with the petitioner's claim that it operates a retail establishment, or that it is engaged in the
wholesale of grocery items.
As noted by the director, the evidence, overall, does support the petitioner's claim that it is doing business in
the United States. As discussed above, the exact type and nature of the business operated by the petitioner
remains questionable and the photographs do not assist in such a determination. The director appropriately
questioned the photographs in the context of evaluating the beneficiary's claimed managerial or executive
capacity.
The AAO acknowledges that USCIS has approved two prior petitions requesting extension of the
beneficiary's L-1A status. The prior approval does not preclude USCIS from denying an extension of the
original visa based on a reassessment of the beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99
Fed. Appx. 556,2004 WL 1240482 (5th CiT. 2004). If the previous nonimmigrant petitions were approved
based on the same unsupported and contradictory 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. § 214.2(l)(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. Ltd. v. Montgomery, 825 F.2d 1084, 1090
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). USCIS memoranda merely articulate internal guidelines
for CIS personnel; they do not establish judicially enforceable rights. An agency's internal personnel
guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may
rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262,
1264 (5th Cir.1987».
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir..
2001), cert. denied, 122 S.Ct. 51 (2001).
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.
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Page 12
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.