dismissed L-1A Case: Restaurant

U.S. Departmelit of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 08 1 19 5 1776 Office: VERMONT SERVICE CENTER 
Date: OC T l 0 2008 
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. 5 1 101(a)(15)(L) 
IN 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. 
&&I4 $1~ 
y~obert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 08 119 51776 
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 beneficiary's employment as its 
general manager 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 1 101 (a)(] 5)(L). The petitioner, a corporation 
organized in the State of Florida, claims to be a Mediterranean restaurant operating under the name of Ali 
Baba Grill Cafe. The petitioner claims that it is the subsidiary of Akkan Construction, Ltd., located in 
Adana, Turkey. The beneficiary was granted three years in L-1A classification and the petitioner seeks to 
extend the beneficiary's stay for three additional years. 
On July 3, 2008, the director denied the petition, concluding that the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. On 
appeal, counsel contends that the director's decision was incorrect based on the evidence of record, and 
claims that the director erred by finding that the beneficiary was not employed in a primarily managerial 
or executive capacity. 
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. 3 214.2(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 
EAC 08 119 51776 
Page 3 
prior education, training, and employment qualifies himher to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
The issue in the present matter is whether 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. 9 1101(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 101(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. 
EAC 08 119 51776 
Page 4 
The request for extension, filed on Form 1-129 on March 20, 2008, indicated that the petitioner currently 
employed 8 persons. In a letter from the petitioner dated March 17, 2008, the beneficiary, in his capacity 
as general manager, claims as follows: 
As a General Manager I oversee entire operations of the restaurant, supervise and control the 
work of professional employees, hire, train and oversee staff, fire staff and have discretion 
over day-to-day operations, determine what equipment must be changed, analyze restaurant 
menu and eliminate or change the unpopular items, oversee food preparation. 
My business plan includes inside repairs, outside construction and renovation, to increase 
seating capacity from 80 seats to 130 and to add Turkish menu items, since the current menu 
offers mostly Greek cuisine. As the result of these changes, I plan to increase staff by four 
people. 
The petitioner also submitted a document entitled "Business Plan," which stated: 
[The petitioner] has been functioning as a gnll-caf6 since 2000 and was profitable ever since. 
Currently, the restaurant has two shifts, one general manager, an operations manager, a 
superintendent, a chef cook, two cook assistants, a waitress and an accountant. During the 
recent shareholders' meeting it was decided that the only way to increase profitability is to 
make inside repairs, outside construction and renovation, to increase seating capacity from 80 
seats to 130 (by adding adjacent premises) and to add Turkish menu items, since the current 
menu offers mostly Greek cuisine. As the result of these changes, the owners are planning to 
increase staff by about four people. 
[The petitioner] has a team of 8 employees. [The beneficiary] is the General Manager. He 
also holds a corporate position of secretary. 
 [The beneficiary] has extensive managerial 
experience. He oversees entire operations. The general manager is also responsible for all of 
the finance and accounting functions. [The beneficiary's] experience will be invaluable in 
keeping [the petitioner] on track and profitable. The General Manager will also supervise and 
direct the reconstruction project . . . which will increase seating capacity by 50 additional 
seats. 
Chef Cool 
a waitress 
lo assistants of cm 
In order to achieve my business plan I am planning to hire four more employees within 
[three] years: one more cook, one assistant cook and two more waitresses as a result of our 
plan to expand business. My average team member has general experience in seated 
EAC 08 119 51776 
Page 5 
restaurant and fast food. The educational and professional background of my employees is 
typical for people worlung in such level within the food service and sale industry in that each 
has general experience in fast food, graduation from high school, and the basic skills needed 
to be competent for those occupations. No specific or qualified credentials are required 
except for the Safety Food Hygiene Course completed by every employee. 
My Chef is responsible for back end production of the venture. She is directing the activities 
of other kitchen workers, menu planning, recipe creation, food and supply ordering. 
Assistant cooks are responsible for day to day food preparation. Waitress is responsible for 
taking orders, serving food, clearing tables. 
The petitioner also submitted an organizational chart, which showed that the beneficiary was at the top of 
the petitioner's organizational hierarchy. It demonstrated that the beneficiary directly oversaw- 
- Operations Manager, who in turn oversaw, Superintendent, who in turn supervised 
the remaining five employees. 
On April 25, 2008, the director requested additional evidence. 
 Specifically, the director requested 
additional evidence to establish that the beneficiary will be employed in a managerial or executive 
capacity, including but not limited to: a more detailed description of the beneficiary's duties and the 
percentage of time he spent on such duties; the number of subordinate employees he supervised as well as 
information regarding their positions; and an explanation regarding who provides the product sales and 
services for the company. The director also requested copies of the petitioner's Employer's Quarterly 
Tax Returns for all four quarters of 2007, in addition to all W-2, 1099, W-3 and 1096 forms issued by the 
petitioner in 2007. 
In a letter dated May 29, 2008, counsel for the petitioner submitted the following updated overview of the 
beneficiary's duties: 
Responsible for the sustained success, growth, and overall asset management of the restaurant 
as measured by total revenue and net income. He is accountable for all aspects of front and 
back-of-house activities including: 
Administrative functions, hire, fire, train and oversee staff 
General management of the restaurant staff and direct supervision of professional 
employees: operations manager and head cook[] 
Approveldetermine the necessity of new main equipment 
Approveldetermine the necessity of new menu or elimination of unpopular menu 
items 
He is responsible to meet or exceed each customer's expectation of [the petitioner's] 
experience by maintaining the highest standards of food and beverage quality, exceptional 
value and superior services. General Manager sets up strategy and vision, approve business 
plan, budget goals, analyze market situation, financial and economic news, meets with local 
EAC08 119 51776 
Page 6 
authorities, lawyers, CPAs regarding main issues that arise if his involvement is necessary 
and those issues cannot be resolved by his subordinates. He reports to the Board of Directors 
on a quarterly basis. 
Monday - Friday (40 hours): 
Analyzing financial results for the previous week, management issues, financial needs, 
review of different proposals fiom Operations Manager and a Head Cook (3 hours). 
Direct supervision of professional staff, by checking decisions made, giving directions, 
correcting decisions made by subordinates if needed (20 hours). 
Checking and analyzing main financial figures, approving budget (2 hours). 
Checking if the business is developing within the strategy and vision set (1 hours). 
Overview of a business plan. Correcting business strategyloperations based on general 
financial and economic situation (0.5 hour). 
Overview market situation in general and on local level (0.5 hour). 
Overview of restaurant operations for the previous week, based on Operations Manager's 
report. Comparing it with what was planned (2 hours). 
Making decisions1corrections based on general economic situation (1.5 hour). 
Checking with the company's budget. Addressing financial needs. Approving of proposals 
to the Board of Directors if needed. (1 hour). 
Checking with Operation Manager regarding human resources needs, business culture issues, 
safety regulations, sales, advertising. (2 hours). 
Building company's culture. Correcting business strategy, plans if needed (1 hour). 
Overview of Operations Manager's and Head Cook's taskslreports for the current week (0.5 ' 
hour). 
Making some prognosis for the near future. Making decisions (2 hours). 
Meeting with local authorities, attorneys etc. on as a needed basis. (1 hours). 
Solving various other issues (2 hours). 
EAC 08 119 51776 
Page 7 
In addition to a brief overview of the positions of the other employees, the petitioner also indicated that 
the operations manager had a bachelor's degree, and the remaining employees all had a high school 
diploma. No documentation in support of these contentions was submitted. It is further noted that the 
overview of employee positions lists six subordinate employees to the benefici 
 the seven 
named in the origin pport. It is further noted that 
the chef assistants, 
 the accountant, have been 
replaced by, assistant chef; 
 waitress; and accountant. 
There is no person named in the second position of assistant chef claimed in the initial petition. 
The petitioner also submitted copies of its Form UCT-6, Employer's Quarterly Report for the State of 
Florida, for the quarters ending September 30,2007 and December 3 1, 2007. These documents indicated 
that for the quarter ending September 30 2007, the 
 in total wages and employed 
three persons: the beneficiary;, Chef Cook; and 
 r, an employee not previously 
identified in the petitioner's staff lists or organizational chart. For the quarter endin December 3 1, 2007, 
the petitioner paid $5,500 in total wages and employed only the beneficiary and a Chef Cook. 
The petitioner also submitted copies of Form 941, Employer's Quarterly Federal Tax Return, for the 
quarters ending September 30,2007 and December 31,2007. Form 941 for the quarter ending September 
30, 2007 indicates that the petitioner paid $1 1,065 in total wages to three employees, in contrast to the 
statements on the petitioner's Form UTC-6 for the same quarter, which indicates total wages in the 
amount of $12,865. Similarly, the petitioner's Form 941 for the quarter ending December 31, 2007 
indicates that the petitioner paid $4,000 in total wages to three employees, in contrast to the statements on 
the petitioner's Form UTC-6 for the same quarter, which indicates total wages in the amount of $5,500 to 
two employees.' 
The petitioner also submitted copies of its Form W-2, Wage and Tax Statement, for 2007 for the 
beneficiary, the Chef Cook, and, the employee not previously identified in any discussion 
of the petitioner's staff. Payroll records for the period ending March 3 1, 2007 indicates that the waitress, 
, worked 10 hours during this period; however, the record does not contain a Form W-2 for 
her for 2007. Moreover, the petitioner failed to submit evidence of the employment of any other persons 
for 2007. 
I 
 It is further noted that the petitioner also submits copies of its Form 941s for the third and fourth 
quarters of 2008, which appears to be erroneous since the response to the request for evidence was 
received on May 29, 2008, prior to the ending of the second quarter of 2008. It is noted that the amounts 
listed as wages paid for these periods corresponds to the wages claimed on the UTC-6 forms for the third 
and fourth quarters of 2007. Nevertheless, the submission of future documents for time periods that have 
yet to occur raises questions with regard to the veracity of the petitioner's other evidentiary submissions. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582,591 (BIA 1988). 
EAC 08 119 51776 
Page 8 
On July 3, 2008, the director denied the petition, finding that the petitioner failed to establish that the 
beneficiary would be employed in a qualifying managerial or executive capacity. Specifically, the 
director found that the beneficiary was not supervising professional employees, and appears to be 
engaged in many of the day-to-day tasks of the business despite his title as general manager. The directly 
specifically focused on the contradictions contained in the employment records of the petitioner in 
comparison with its claimed staffing. On appeal, counsel contends that the beneficiary operated in a 
qualifying capacity by overseeing a staff and producing gross sales in the amount of $358,5 14 for 2006 
and $281,684 in 2007. Counsel concludes by claiming that the petitioner has satisfied its burden by a 
preponderance of the evidence. 
Upon review, the AAO concurs with the director's findings. 
Despite the petitioner's contentions that the beneficiary functioned in a qualifying position, the 
information submitted with regard to the beneficiary's position, coupled with the inconsistent 
employment records and contradictory claims with regard to staffing, suggests that the beneficiary 
performs most of the day-to-day duties required to operate the company, and thus could he not be 
considered primarily a manager or executive. The MO will begin by examining the duties of the 
beneficiary. 
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. 9 214.2(1)(3)(ii). 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). 
In this matter, the petitioner provided a generic description of the beneficiary's duties with the initial 
petition. In the request for evidence, the director asked the petitioner to submit more detailed evidence 
outlining the duties delegated to the beneficiary and, in response the petitioner submitted a description of 
duties along with the amount of hours he would devote to each task. The petitioner, however, failed to 
submit a specific overview of the beneficiary's duties that would clarify his role with regard to the 
deficiencies in staffing. Consequently, the description of duties on record, although it does provide a 
percentage breakdown, fails to specifically state the exact nature of the beneficiary's duties. More 
importantly, the petitioner fails to articulate the exact nature of the beneficiary's position with regard to 
the other staff members and the manner in which they interact. For example, the petitioner claims that the 
beneficiary is the general manager and the highest authority in the company, yet the description of duties 
is essentially a laundry list of non-specific tasks such as "checking if the business is developing within the 
strategy and vision set supervising subordinate employees," "building company's culture," and "solving 
various other issues." 
EAC08 11951776 
Page 9 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. 
Cir. 1990). In this matter, the recitation of the beneficiary's duties includes an abundance of tasks with no 
specific outline to clarify to what extent the beneficiary is engaged in each task. For example, "building 
company's culture" is too vague to allow the AAO to determine the exact nature of the beneficiary's role 
in the company. The director afforded the petitioner an opportunity to supplement the record with a more 
specific description of the beneficiary's duties yet the petitioner failed andlor refused to do so. As a 
result, the AAO cannot determine the exact nature of the beneficiary's duties in the context of the 
petitioner's stated business or determine whether his duties are primarily managerial or executive in 
nature. 
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 answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
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), afyd, 905 F.2d 41 (2d. Cir. 1990). 
Because a number of the tasks listed in the recitation of duties include tasks traditionally not considered to 
be primarily managerial or executive, it is impossible to determine that the beneficiary functions primarily 
as manager or executive of the company. For example, the petitioner claims that the beneficiary is 
responsible for "approv[ing]/determine[ing] the necessity of new menu or elimination of unpopular menu 
items." Generally, a task such as this would appear to be marketing-related and thus non-qualifying; 
however, the petitioner provides no detail regard the extent of the beneficiary's involvement in these 
tasks. Instead, the petitioner merely concludes that the beneficiary is "the highest authority within the 
organization" and therefore is primarily a manger or executive. This claim, however, will not suffice. 
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. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Merely claiming 
that the beneficiary is operating in a qualifying capacity is insufficient for purposes of this analysis. 
More important, however, are the discrepancies in the record with regard to the staffing of the petitioner's 
operation. The petitioner claims that 20 hours of the beneficiary's work week is dedicated to the "direct 
supervision of professional staff, by checking decisions made, giving directions, correcting decisions 
made by subordinates." Although the beneficiary is not required to supervise personnel, if it is claimed 
that his duties involve supervising employees, the petitioner must establish that the subordinate 
employees are supervisory, professional, or managerial. See 5 10 1 (a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide the level of education required to perform 
the duties of its chef, its kitchen staff, its waitress and other supporting staff members. Although the 
EAC 08 119 51776 
Page 10 
petitioner claimed that the operations manager possessed a bachelor's degree and the remainder of the 
staff possessed high school diplomas, the petitioner provided no documentation to support these claims. 
Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. tj 103.2(b)(14). Moreover, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating whether the beneficiary manages professional employees, the MO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. tj 1101(a)(32), states that "[tlhe term profession shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a 
prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic 
prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). It is 
generally presumed that staff at a restaurant would not require a baccalaureate degree as a prerequisite for 
employment. The position of operations manager, however, if truly a professional position, may in fact 
require additional education; however, the petitioner failed to address this request for information by the 
director so the requirements for this position cannot be determined based on the current record. 
Thus, the petitioner has not established that these employees possess or require a bachelor's degree, such 
that they could be classified as professionals. While the petitioner does contend that the operations 
manager supervises subordinate staff members (i.e., the kitchen staff), the failure to document the actual 
employment of the operations manager renders it impossible to conclude that the beneficiary is able to 
solely supervise employees who relieve him from engaging in non-qualifying tasks. Thus, in addition to 
failing to demonstrate the actual employment of its alleged staff of eight persons, the petitioner has 
likewise failed to demonstrate that the beneficiary's subordinate employees would be supervisory, 
professional, or managerial, as required by section 10 1 
(a)(44)(A)(ii) of the Act. 
In the absence of such evidence as pay stubs and payroll records, the petitioner has not established that 
the petitioner employs a subordinate staff that would relieve the benefi erforming 
non-qualifying duties. Although the petitioner submits evidence that it employed identified 
as the Chef, and , a person not specifically identified by name or position on the 
organizational chart or staff overview, this evidence contradicts the petitioner's repeated claims that it 
employed a staff of eight persons to operate the restaurant. 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, 59 1-92 (BIA 1988). 
A critical analysis of the nature of the petitioner's business, based on the absence of employment records, 
undermines counsel's assertion that the petitioner has subordinate employees to relieve the beneficiary 
EAC 08 119 51776 
Page 11 
from performing non-qualifying duties. Rather, it appears from the record that the only individuals 
performing any restaurant-related functions are the beneficiary and the chef. As the chef clearly prepares 
the food, and the record identifies no waitress, no cashier, and no kitchen assistants as being on the 
payroll, it is reasonable to assume, and has not been proven otherwise, that the beneficiary is performing 
all other day-to-day functions, including waiting on tables, operating the cash register, cleaning dishes 
and cleaning the restaurant, etc. Since the petitioner contends that it is currently able to seated 80 
persons, it is unlikely that the restaurant can be operational without the direct participation of the 
beneficiary in service-related functions. Based on the record of proceeding, therefore, the beneficiary's 
job duties are principally composed of non-qualifying duties that preclude him from functioning in a 
primarily managerial or executive role. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner noted that CIS approved other petitions that had been previously filed on behalf of the 
beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the 
other nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The MO 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 MO'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 MO 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 1 139 (5th Cir. 200 I), cert. denied, 122 S.Ct. 5 1 (200 1). The prior approvals do not preclude CIS 
from denying an extension of the original visa based on reassessment of petitioner's qualifications. Texas 
AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will 
be employed in a primarily managerial or executive capacity. For this reason, the petition may not be 
approved. 
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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.