still wave llc - combined eb-1c cases 2009-2013

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO. 6:13-CV-152-ORL-31TBS

Still Wave LLC and Gregorio H. Henriques,

Plaintiffs, vs. US Attorney General, Secretary of the Department of Homeland Security, Director of the US Citizenship & Immigration Services, Chief of the Administrative Appeals Office, and Director of the Texas Service Center of the US Citizenship & Immigration Services, Defendants. _____________________________________ /

JOINT NOTICE OF VOLUNTARY DISMISSAL

Plaintiffs, Still Wave LLC and Gregorio H. Henriques, by and through their

undersigned attorney file this Notice of Voluntary Dismissal and state as follows:

1. Plaintiffs have been granted the relief sought in the Complaint for Declaratory

Relief in that the Administrative Appeals Office has reopened its prior decision

and has sustained plaintiff’s appeal. As such, there is no longer any issue in

controversy.

2. The undersigned certifies that he has conferred by email with Samuel Go, Senior

Litigation Counsel, Office of Immigration Litigation, and he has joined in the

motion.

Case 6:13-cv-00152-GAP-TBS Document 10 Filed 05/02/13 of 2 PageID 38

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Wherefore, plaintiffs respectfully request that the Court enter an order dismissing

the instant case with prejudice, with each party to bear their own costs.

Respectfully submitted, Philip M. Zyne, P.A. 1978 Bridgewater Drive

Heathrow, FL 32746-6907 (407) 833-8951 Phone (407) 833-8952 Fax [email protected] E-mail

s/ Philip M. Zyne By: Philip M. Zyne Attorney for Plaintiffs FL Bar #: 185620

Certificate of Service I hereby certify that on May 2, 2013 I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Samuel Go Senior Litigation Counsel United States Department of Justice Office of Immigration Litigation District Court Section Post Office Box 868 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 353-9923 Facsimile: (202) 616-8962 Email: [email protected]

s/ Philip M. Zyne______________ Philip M. Zyne Attorney for Plaintiffs

Case 6:13-cv-00152-GAP-TBS Document 10 Filed 05/02/13 of 2 PageID 39

mailto:[email protected]

mailto:[email protected]

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;/ ... , •(J;s: D.epaitiiiei:Jt o.r~onid.itJid ·Sec:urity U. S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave. N.W., MS 2090 Washington, DC 20529-2090

U.S. Citizenship .and Iiiilfii.gration Services

DATE: APR' 2 6 2013 OFFICE: TEXAS SERVICE CENTER FILE:

INRE: Petitioner: Beneficiary:

PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

Thank you,

Ron Rosenberg Acting Chief, Administrative Appeals Office

. . .. .. .. 'cl . www.~~ .. s.gQv.

http://www.uscis.gov/sites/default/files/err/B4%20-%20Multinational%20Managers%20and%20Executives/Decisions_Issued_in_2013/APR262013_01B4203.pdf

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DISCUSSION: The director, Texas Service Center, initially approved the employment-based visa petition. The director subsequently determined that the petitioner was not eligible for the · benefit sought and issued a notice of intent to revoke. The director ultimately revoked approval of the petition. The petitioner filed an appeal to the Administrativ~ ·Appeals Office (AAO). The AAO dismissed the appeal and two subsequent motions.

The AAO now reopens its original decision sua sponte, on Service motion, pursuant to 8 C.F.R. § 103.5(a)(5)(i). The AAO will withdraw its prior decisions, along with the decision of the director, and sustain the appeal. ·

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. . Upon review of the record of proceeding, that burden has been met.

ORDER: The appeal is sustained. The prior decisions of the AAO and the director are withdrawn.

Case 6:13-cv-00152-GAP-TBS Document 1 Filed 01/28/13 Page 1 of 7 PageID 1

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FL0~1[i.'! 28 P,

11•.1• 9: '·3

ORLANDO DIVISION I li "

Still Wave LLC and Gregorio H. Henriques,

Plaintiffs,

vs.

Eric H. Holder Jr., US Attorney General; Janet Napolitano, Secretary of the Department of Homeland Security; Alejandro Mayorkas, Director of the US Citizenship & Immigration Services; Perry Rhew, Chief of the Administrative Appeals Office, and David Roark, Director of the Texas Service Center of the US Citizenship & Immigration Services;

Defendants. _______________________________ /

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COMPLAINT FOR DECLARATORY RELIEF

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Plaintiffs, Still Wave LLC and Gregorio H. Henriques, by and through their

undersigned attorney file this Complaint for Declaratory Relief and state as follows:

INTRODUCTION

This is an individual action for declaratory relief, authorized by 28 U.S.C. Section

1361 (the Declaratory Judgment Act), 28 U.S.C. Section 1331 (Federal Question

Jurisdiction), and the Administrative Procedure Act (5 USC Section 70let seq.) This

action challenges the decision of the US Department of Homeland Security, and in

particular its US Citizenship & Immigration Services Division (USCIS) and its

Administrative Appeals Office (AAO), to revoke the 1-140 petition filed by plaintiff Still


Wave LLC on behalf of its General Manager Gregorio Henriques pursuant to 8 C.F.R.

Section 205.2.

JURISDICTION

This Court has jurisdiction over the present action pursuant to 28 U.S.C. Section

1331, Federal Question Jurisdiction; 28 U.S.C. Section 2201, the Declaratory Judgment

Act; and 5 U.S.C. Section 702, the Administrative Procedures Act.

VENUE

28 U.S.C. Section 139l(e), as amended, provides that in a civil action in which

each defendant is an officer or employee of the United States or any agency thereof

acting in his official capacity, or under color of legal authority, or any agency of the

United States, the action may be brought in any judicial district in which a defendant in

the action resides. In addition, the action may be brought in any judicial district where a

substantial part of the events giving rise to the claim occurred, or in any judicial district

where a plaintiff resides if no real property is involved in the action. Both of the

plaintiffs, Still Wave LLC and Gregorio Henriques, are residents of the Middle District of

Florida; all of the events giving rise to the claim occurred in the Middle District of

Florida; and defendants Department of Homeland Security and US Citizenship &

Immigration Services (hereinafter USC IS) are agencies that operate within this district.

PLAINTIFFS

Plaintiff Still Wave LLC is a corporation established in the State of Florida on

June 28, 2001. At all times pertinent to this case, the company was involved in the

property management business. On or about November 14, 2005, the company filed an 1-

140 Immigrant Petition for Alien Worker on behalf of Plaintiff Gregorio Henriques,

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which was approved by USCIS on December 8, 2006. Plaintiff Henriques was the

general manager of Still Wave LLC and the beneficiary of the approved 1-140 petition

filed by Still Wave. Based on the approved 1-140 petition, Mr. Henriques obtained

lawful permanent resident status in the United States on March 14, 2006.

DEFENDANTS

Defendant, Eric H. Holder, Jr., is the US Attorney General with ultimate authority

over the US Department of Homeland Security. Defendant Janet Napolitano is the

Secretary of the Department of Homeland Security, which is the parent agency of the US

Citizenship & Immigration Services headed by Alejandro Mayorkas. David Roark is the

Director of the Texas Service Center of the US Citizenship & Immigration Services,

which is the office that revoked plaintiff's I-140 petition, and Perry Rhew is the Chief of

the Administrative Appeals Office, which affirmed the revocation of the 1-140 petition.

STATEMENT OF THE FACTS

Plaintiff Still Wave LLC is a corporation organized under the laws of the State of

Florida. Pursuant to 8 C.F.R. §204.5, the company was permitted to submit a petition

with USCIS to classify its employee, Gregorio Henriques, as a multinational executive or

manager, and Mr. Henriques was permitted to simultaneously submit an application to

adjust his status to that of a lawful permanent resident of the United States.

Plaintiff Still Wave LLC filed the petition (immigration form I -140) on behalf of

its general manager, Gregorio Henriques, on November 14, 2005 and he submitted his

application for adjustment of status on the same day. On December 8, 2005, USCIS

approved the I-140 petition (Exhibit I).

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On March 14, 2006, USCIS approved the application for adjustment of status to

lawful pennanent residence filed by Mr. Henriques (Exhibit 2). Applications for

adjustment of status were approved on the same day for the spouse and minor children of

Mr. Henriques. As of that moment, Mr. Henriques and his family members were lawful

pennanent residents of the United States. A few days thereafter, Mr. Henriques and his

family received their alien resident cards (Exhibit 3).

More than one and one-half (1 Y2) years later, on September 19, 2007, USCIS

notified plaintiff, Still Wave LLC, of its intent to revoke the 1-140 petition that had

previously been approved for its general manager, Gregorio Henriques. There was no

allegation of fraud or illegality in the procurement of the visa approval. The sole basis

for seeking revocation was that, in the view of the Texas Service Center, the petitioner

(Still Wave) had not met its burden of proof by a preponderance of the evidence that the

beneficiary (Henriques) met the requirements to be classified as a general manager under

the regulations.

On April 15, 2008, USCIS revoked the approved 1-140 petition. Still Wave filed

a timely appeal to the AAO, which dismissed the appeal on April 2, 2009. On or about

April 30, 2009, Still Wave filed a Motion to Reopen and Reconsider with the AAO

alleging that it had no authority to revoke the 1-140 petition because the approved petition

had already been used to acquire pennanent residence for its employee, Mr. Henriques,

and that the only recourse available to USC IS would be to commence proceedings before

an Immigration Judge where USCIS would have to prove by clear, convincing, and

unequivocal evidence that Mr. Henriques was ineligible for adjustment of status.

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The AAO dismissed the motion on November 23, 2010. Thereafter, petitioner

through undersigned counsel filed a new Motion to Reconsider with the AAO alleging

that there is no basis in the law for the revocation of the I-140 petition once adjustment of

status has been granted. The proper procedure would have been to seek to rescind the

beneficiary's adjustment of status pursuant to Section 246 of the Immigration and

Nationality Act. However, the AAO again dismissed the appeal on August 16, 2012.

The decision of the AAO does not refer to any immigration statute, regulation, or

prior court or agency decision which supports its position that once a person has used an

approved immigrant visa petition and obtained lawful permanent residence status that

said petition could thereafter be revoked.

There is no administrative remedy available to plaintiffs from the decision of the

AAO. Therefore, plaintiffs have exhausted all administrative remedies available and no

adequate remedies exist.

As a result of defendants' arbitrary, capricious, and unlawful acts, which are not

supported by substantial evidence, plaintiff Still Wave LLC has been deprived of the

right to have its general manager Gregorio Henriques work for it on a permanent basis,

and plaintiff Gregorio Henriques has been unlawfully denied the right to live and work in

the United States as a lawful permanent resident.

STATEMENT OF THE LAW

8 C.F.R. §204.5 states that a US employer may file a petition on Form 1-140 for

classification of an alien under section 203(b)(l)(C) of the Act as a multinational

executive or manager.

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8 C.F.R. §245.1 states that any alien who is physically present in the United

States, except for an alien who is ineligible to apply for adjustment of status ... may

apply for adjustment of status to that of a lawful permanent resident of the United States,

if the applicant is eligible to receive an immigrant visa and an immigrant visa is

immediately available at the time of filing of the application.

Sec. 205 of the Immigration & Nationality Act (8 U.S.C. 1155) provides that the

Secretary of Homeland Security may, at any time, for what he deems to be good and

sufficient cause, revoke the approval of any petition approved by him under section 204.

Such revocation shall be effective as of the date of approval of any such petition.

However, once an immigrant visa is issued the petitioner's burden to prove the validity of

the petition is discharged, Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305

(9th Cir. 1984); see also Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (BIA 2006).

CLAIM FOR RELIEF

Defendants have arbitrarily, capriciously, and unlawfully revoked the 1-140

Immigrant Petition for Alien Worker filed by plaintiff Still Wave LLC on behalf of its

general manager Gregorio Henriques, thereby depriving plaintiffs of their rights as

provided for under the Immigration and Nationality Act.

Defendants owed plaintiffs the duty to act upon the petition in a proper and legal

manner, and have unreasonably failed to perform that duty. Plaintiffs have provided all

relevant information and facts in their case. have submitted the proper 1-140 petition,

have obtained approval of said petition, and plaintiff Gregorio Henriques has obtained

lawful permanent residence in the United States based on said 1-140 approval. Both

plaintiffs are greatly harmed by the unlawful act of defendants in revoking the approved

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1-140 petition after it had already been used by plaintiff Gregorio Henriques to obtain

lawful permanent residence status in the United States.

Plaintiffs have exhausted any administrative remedies that may exist. No other

remedy exists for plaintiffs to resolve defendants' unlawful actions.

WHEREFORE, plaintiffs pray that this Court:

1. Assume jurisdiction ofthis cause;

2. Declare that the Department of Homeland Security's revocation of plaintiff's

approved 1-140 Immigrant Petition for Alien Worker is an arbitrary and

capricious abuse of authority and is not supported by substantial evidence.

3. Compel defendants and those acting under them to immediately perform their

duty to reinstate the revoked 1-140 petition filed by plaintiff Still Wave LLC;

4. Grant such other and further relief as this Court deems proper under the

circumstance; and

5. Grant attorney's fees and costs of court.

Respectfully submitted,

Philip M. Zyne Attorney for Plaintiffs Florida Bar#: 185620 Philip M. Zyne, P.A. 1978 Bridgewater Drive Heathrow, FL 32746-6907 ( 407) 833-8951 Phone ( 407) 833-8952 Fax [email protected]

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pUBLIC copy

FILE: Office: TEXAS SERVICE CENTER

INRE: Petitioner: Beneficiary:

u.s. Department of Homeland Security U. S. Citizenship and Immigration Services Office of Administrative Appeals MS 2090 Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

Date:

NOV 2 3 2010

PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C)


INSTRUCTIONS:

This is the decision ofthe 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 by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

Perry Rhew Chief, Administrative Appeals Office

www.ulcis.gov

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DISCUSSION: The director, Texas Service Center, initially approved the employment-based visa petition on December 8, 2006. Upon later review of the record the director determined that the petitioner was not eligible for the benefit sought and therefore issued a Notice of Intent to Revoke (NOIR). The director ultimately revoked approval of the petition on April 15, 2008. The petitioner subsequently filed an appeal before the Administrative Appeals Office (AAO) where the appeal was dismissed in a decision dated April 2, 2009. The matter is now before the AAO on motion to reopen and reconsider. The petitioner's motion to reopen will be dismissed due to the petitioner's failure to meet the requirements of 8 C.F.R. § 103.5(a)(2). The motion to reconsider will be granted and counsel's statements will be considered in a full discussion below. However, the underlying decision dismissing the appeal will be affirmed.

The petitioner is a limited liability company formed under the laws of the State of Florida. It seeks to employ the beneficiary as its general manager. Accordingly, it endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager.

Upon review and after providing proper notice, the director ultimately revoked the approval pursuant to section 205 of the Act, 8 U.S.C. § 1155. The director's decision was based on two conclusions regarding the petitioner's eligibility: 1) the petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive position in the United States; and 2) the petitioner failed to establish that it had been doing business for at least one year prior to the filing of the petition on November 14, 2005.

On appeal, the petitioner disputed both grounds cited in the revocation. The AAO reviewed the record in its entirety and affirmed the director's conclusion. With regard to the first ground, the AAO found that the petitioner failed to establish that the beneficiary would perform primarily managerial or executive job duties. Rather, the AAO found that portions of the beneficiary's job description listed broad job responsibilities that were ambiguous as to the true nature of the underlying tasks, while other tasks that were attributed to the beneficiary'S proposed position were administrative, operational, and more indicative of· a first-line supervisor, as no evidence had been provided to establish that the beneficiary'S subordinates were managerial, supervisory, or professional employees.

With regard to the second ground for revocation, the AAO found that the petitioner failed to submit evidence establishing that it received payments from rent and property management. The AAO noted that merely providing signed property management agreements or evidence of wages paid to contractors and employees was insufficient to establish that the petitioner had been engaged in the regular, systematic, and continuous provision of a service. Accordingly, the AAO concluded that the petitioner failed to provide evidence to establish that it met the provisions of 8 C.F.R. § 204.5U)(3)(i)(D), which states that the petitioner must show that it had been doing business for at least one year prior to filing the Form 1-140.

On motion, counsel does not address either of the two grounds that formed the basis for the decision to revoke the petition. Rather, counsel argues that it is improper for U.S. Citizenship and Immigration Services (USCIS) to revisit the issue of the petitioner's eligibility for the employment-based visa sought on behalf of the

beneficiary when the beneficiary has already been granted permanent resident status. Counsel further asserts that if the beneficiary was not eligible for permanent resident status, the proper means to remedy the error is to commence the process for rescinding the approval of the beneficiary'S application for adjustment of status in accordance with section 246 of the Act, thereby requiring USCIS to meet the clear, convincing, and unequivocal burden of proof. Counsel's argument overlooks the possibility that revocation of a visa petition

may serve as a basis for rescinding the approval of an application for adjustment of status. Thus, revocation of the visa petition in the present matter is not an isolated procedure that deals solely with the issue of eligibility for the employment-based visa classification. Rather, the revocation will be treated as a preliminary step to the overall rescission process based on the reasoning that if the beneficiary is found to be ineligible for an employment-based visa classification, the erroneous approval of such visa classification cannot serve as a basis for granting the beneficiary's application for permanent resident status.

As stated in the AAO's earlier decision, with regard to the revocation on notice of an immigrant petition under section 205 of the Act, the Board of Immigration Appeals has stated:

In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.

Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N 450 (BIA 1987)).

USCIS regulations affirmatively require an alien to establish eligibility for an immigrant visa at the time an application for adjustment of status is filed. See 8 C.F.R. § 245.l(a). If the beneficiary of an approved visa petition was ineligible or is no longer eligible for the classification sought, the director may seek to revoke his approval of the petition pursuant to section 205 of the Act, 8 U.S.c. § 1155, for "good and sufficient cause." By itself, a director's realization that a petition was incorrectly approved is good and sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. at 590. Notwithstanding the USCIS burden to show "good and sufficient cause" in proceedings to revoke the approval of a visa petition, the petitioner bears the ultimate burden of establishing eligibility for the benefit sought. The petitioner's burden is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984).

In the present matter, counsel focuses on the ninth circuit court finding in the above cited case, which she interprets to mean that a petitioner's eligibility is no longer an issue once the beneficiary of the employmentbased visa petition adjusts his or her status to that of a permanent resident. Counsel's interpretation presumes that eligibility for the employment-based visa had been properly established. Such is not the case with the current petitioner where both the director and the AAO (in its prior decision) outlined specific reasons showing why the petition had been erroneously approved. Here, the AAO notes an important distinction between the beneficiary of an employment-based visa petition who obtains permanent resident status on the basis of an approved petition and the beneficiary of an employment-based visa petition who obtains permanent resident status on some other basis. While both beneficiaries may derive the same immigration benefit, the beneficiary in the latter scenario does not need an approved employment-based visa petition in order to obtain that benefit. Thus, in that case, eligibility for the underlying visa petition does not playa pivotal role. In the present matter, the record indicates that the beneficiary's permanent resident status was based solely on an approved Form 1-140. Therefore, establishing eligibility for the underlying employmentbased visa petition is a crucial step in the overall process of adjusting the beneficiary's status to that of a permanent resident. As such, while the petitioner does not have the burden of maintaining eligibility after the

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immigrant visa is issued, the petitioner cannot claim to have a valid visa petition if it failed to establish that it met the eligibility requirements at the time of filing and continued to meet such requirements through the date the beneficiary's status was adjusted to that of a permanent resident. Contrary to counsel's assertion, the issue of eligibility for the employment-based immigrant petition does not become irrelevant merely because an adjustment of status application was erroneously approved on the basis of a petition where eligibility had not been established. Such a visa petition would be deemed invalid and USCIS would be justified III

reevaluating any subsequent benefits derived from the invalid visa petition.

In summary, USCIS has determined that the petitioner failed to establish eligibility on two grounds. The AAO has since affirmed the director's findings in the decision issued on April 2, 2009. Although counsel generally disputes the propriety of issuing any adverse findings regarding the petitioner's eligibility for the immigrant visa petition given the beneficiary'S adjustment of status, the actual grounds for revocation have not been disputed or overcome on motion.

Accordingly, the revocation will remain undisturbed for the above stated reasons, with each considered as an independent and alternative basis for denial. 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. The petitioner has not sustained that burden.

ORDER: The motion is dismissed.

identifying data deleted toprevent cle2rly unwarrantedinvasion ofpersonal privacyPUBUC COPY

U.S. Department of Homeland SecurityU. S. Citizenship and immigration ServicesAdministrative Appeals Office (AAO)20 Massachusens Ave. N.W., MS 2090Washington, DC 20529-2090

U.S. Citizenshipand ImmigrationServices

DATE: AUG 1 6 2012 OFFICE: TEXAS SERVICE CENTER

IN RE: Petitioner:Beneficiary:

PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant toSection 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C)


INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documentsrelated to this matter have been returned to the office that originally decided your case. Please be advised thatany further inquiry that you might have concerning your case must be made to that office.

If you believe the AAO inappropriately applied the law in reaching its decision, or you have additionalinformation that you wish to have considered, you may file a motion to reconsider or a motion to reopen inaccordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. Thespecific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motiondirectly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed within30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

Perry RhewChief, Administrative Appeals Office

www.uscas.gov

DISCUSSION: The director, Texas Service Center, initially approved the employment-based visapetition on December 8, 2006. The director subsequently determined that the petitioner was noteligible for the benefit sought and therefore issued a Notice of Intent to Revoke (NOIR). Thedirector ultimately revoked approval of the petition on April 15, 2008. The petitioner subsequentlyfiled an appeal to the Administrative Appeals Office (AAO) where the appeal was dismissed in adecision dated April 2, 2009. The petitioner subsequently filed a motion to reopen and reconsiderwhich the AAO dismissed on November 23, 2010. On December 27, 2010, the petitioner filed amotion to reconsider. The motion to reconsider will be dismissed.

The petitioner is a limited liability company formed under the laws of the State of Florida. It seeks toemploy the beneficiary as its general manager. Accordingly, it endeavors to classify the beneficiary asan employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and NationalityAct (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager.

Upon review and after providing proper notice, the director ultimately revoked the approval pursuant tosection 205 of the Act, 8 U.S.C. § 1155. The director determined that: 1) the petitioner failed toestablish that the beneficiary will be employed in a primarily managerial or executive capacity in theUnited States, and 2) the petitioner failed to establish that it had been doing business for at least oneyear prior to the filing ofthe petition on November 14, 2005.

On motion, counsel does not address either of the two grounds that formed the basis for the decisionto revoke the petition. Rather, counsel argues that it is improper for U.S. Citizenship andImmigration Services (USCIS) to revisit the issue of the petitioner's eligibility for the employment-based visa sought on behalf of the beneficiary when the beneficiary has already been grantedpermanent resident status. Counsel further asserts that if the beneficiary was not eligible forpermanent resident status, the proper means to remedy the error is to commence the process forrescinding the approval of the beneficiary's application for adjustment of status in accordance withsection 246 of the Act, thereby requiring USCIS to meet the clear, convincing, and unequivocalburden of proof. In addition, counsel contends that the cases discussed in the AAO's prior decisionare not relevant as those cases discussed the revocation of an I-140 petition prior to the approval ofadjustment of status, when in this case, the I-140 revocation has occurred aner the beneficiary wasgranted adjustment of status.

Counsel sites to section 246 of the Act, and states that the AAO has no authority to rescind theadjustment of status. The AAO agrees with counsel and notes that the current revocation does notdeal with the adjustment of status but instead is a revocation of the underlying I-140 petition.

USCIS regulations affirmatively require an alien to establish eligibility for an immigrant visa at thetime an application for adjustment of status is filed. See 8 C.F.R. § 245.l(a). If the beneficiary of anapproved visa petition was ineligible or is no longer eligible for the classification sought, the directormay seek to revoke his approval of the petition pursuant to section 205 of the Act, 8 U.S.C. § 1155,for "good and sufficient cause." By itself, a director's realization that a petition was incorrectlyapproved is good and sufficient cause for the issuance of a notice of intent to revoke an immigrantpetition. Matter ofHo, 19 I&N Dec. at 590. Notwithstanding the USCIS burden to show "good andsufficient cause" in proceedings to revoke the approval of a visa petition, the petitioner bears theultimate burden of establishing eligibility for the benefit sought. In Matter of Cheunt, 12 I&N Dec.

715 (BIA 1968), the Board speciñed that the burden remains with the petitioner in revocationproceedings to establish that the beneficiary qualifies for the benefit sought under the immigrationlaws, a principle which was reaffirmed in Matter of Estime , 19 I&N Dec. 450 (BIA 1987).

As stated in the AAO's earlier decision, with regard to the revocation on notice of an immigrant petitionunder section 205 ofthe Act, the Board of Immigration Appeals has stated:

In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visapetition is properly issued for "good and sufficient cause" where the evidence ofrecord at the time the notice is issued, if unexplained and unrebutted, would warrant adenial of the visa petition based upon the petitioner's failure to meet his burden ofproof The decision to revoke will be sustained where the evidence of record at thetime the decision is rendered, including any evidence or explanation submitted by thepetitioner in rebuttal to the notice of intention to revoke, would warrant such denial.

Matter ofHo, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter ofEstime, 19 I&N 450 (BIA 1987)).

Counsel suggests that a petitioner's eligibility is no longer an issue once the beneficiary of theemployment-based visa petition adjusts his or her status to that of a permanent resident. Counsel'sinterpretation presumes that eligibility for the employment-based visa had been properly established.Such is not the case with the current petitioner where both the director and the AAO (in its priordecision) outlined specific reasons showing why the petition had been erroneously approved. In thepresent matter, the record indicates that the beneficiary's permanent resident status was based solelyon an approved Form I-140. Therefore, establishing eligibility for the underlying employment-basedvisa petition is a crucial step in the overall process of adjusting the beneficiary's status to that of apermanent resident. As such, while the petitioner does not have the burden of maintaining eligibilityafter the immigrant visa is issued, the petitioner cannot claim to have a valid visa petition if it failedto establish that it met the eligibility requirements at the time of filing and continued to meet suchrequirements through the date the beneficiary's status was adjusted to that of a permanent resident.Contrary to counsel's assertion, the issue ofeligibility for the employment-based immigrant petitiondoes not become irrelevant merely because an adjustment of status application was erroneouslyapproved on the basis of a petition where eligibility had not been established. Such a visa petitionwould be deemed invalid and USCIS would be justified in reevaluating any subsequent benefitsderived from the invalid visa petition. This is further reiterated in the Act at section 221(i) thatstates: "After the issuance of a visa or other documentation to any alien, the consular officer of theSecretary of State may at any time, in his discretion, revoke such visa or other documentation."

Counsel's argument overlooks the possibility that revocation of a visa petition may serve as a basisfor rescinding the approval of an application for adjustment of status. Thus, revocation of the visapetition in the present matter is not an isolated procedure that deals solely with the issue ofeligibilityfor the employment-based visa classification. Rather, the revocation will be treated as a preliminarystep to the overall rescission process based on the reasoning that if the beneficiary is found to beineligible for an employment-based visa classification, the erroneous approval of such visaclassification cannot serve as a basis for granting the beneficiary's application for permanent residentstatus.

In summary, USCIS has determined that the petitioner failed to establish eligibility on two grounds.The AAO has since affirmed the director's findings in the decision issued on April 2, 2009.Although counsel generally disputes the propriety of issuing any adverse findings regarding thepetitioner's eligibility for the immigrant visa petition given the beneficiary's adjustment of status, theactual grounds for revocation have not been disputed or overcome on motion.

Accordingly, the revocation will remain undisturbed for the above stated reasons, with eachconsidered as an independent and alternative basis for revocation of the approval o f the visa petition.In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirelywith the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained thatburden.

ORDER: The motion is dismissed.

IdentlQtng data deleted to prevent clearly unwarranted invasion of pemnal privacy

U.S. Department of Homeland Security 20 Mass. Ave. N.W., Rm. 3000 Washington, DC 20529-2090

U. S. Citizenship and Immigration

PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 1 153(b)(l)(C)


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 Form I-290B, 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 or reopen, as required by 8 C.F.R. 103.5(a)(l)(i).

John F. Grissom, Acting chief Administrative Appeals Office

DISCUSSION: The director, Texas Service Center, initially approved the employment-based visa petition on December 8, 2006. Upon later review of the record, however, the director determined that the petitioner was not eligible for the benefit sought and therefore issued a Notice of Intent to Revoke (NOIR). The director ultimately revoked approval of the petition on April 15, 2008. The matter is now before the Administrative Appeals Office (AAO). The appeal will be dismissed.

The petitioner is a limited liability company formed under the laws of the State of Florida and claims to be in the business of property management. It seeks to employ the beneficiary as its general manager. Accordingly, it endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(C), as a multinational executive or manager.

Upon review and after providing proper notice, the director ultimately revoked the approval pursuant to section 205 of the Act, 8 U.S.C. 8 1155. The director determined (1) that the petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive position in the United States; and (2) that the petitioner failed to establish that it had been doing business for at least one year prior to the filing of the petition on November 14,2005.

On appeal, counsel claims that the record establishes that the beneficiary will primarily perform qualifyrng duties in the United States and that the petitioner engaged in the regular, systematic, and continuous provision of services for one year prior to the filing of the petition.

Section 203(b) of the Act states in pertinent part:

(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):

(C) Certain Multinational Executives and Managers. -- An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

The language of the statute is specific in limiting this provision to only those executives and managers who have previously worked for a fm, corporation or other legal entity, or an affiliate or subsidiary of that entity, and who are coming to the United States to work for the same entity, or its affiliate or subsidiary.

A "United States employer" may file a petition on Form 1-140 for classification of an alien under section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this

classification. The prospective employer in the United States must furnish a job offer in the form of a statement which indicates that the alien is to be employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties to be performed by the alien.

Title 8 C.F.R. i j 204.5Cj)(3) explains that a petition filed for a multinational executive or manager under section 203(b)(l)(C) must be accompanied by a statement fkom an authorized official of the "petitioning United States employer" which demonstrates that:

(A) If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

(B) If the alien is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;

(C) The prospective employer in the United States is the same employer or a subsidiary or afiliate of the fum or corporation or other legal entity by which the alien was employed overseas; and

(D) The prospective United States employer has been doing business for at least one year.

Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of Immigration Appeals has stated:

In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.

Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N 450 (BIA 1987)).

U.S. Citizenship and Immigration Services (USCIS) regulations affumatively require an alien to establish eligibility for an immigrant visa at the time an application for adjustment of status is filed. See 8 C.F.R. i j 245.1(a). If the beneficiary of an approved visa petition was ineligible or is no longer eligible for the classification sought, the director may seek to revoke his approval of the petition pursuant to section 205 of

the Act, 8 U.S.C. 5 1155, for "good and sufficient cause." By itself, a director's realization that a petition was incorrectly approved is good and sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. at 590. Notwithstanding the USCIS burden to show "good and sufficient cause" in proceedings to revoke the approval of a visa petition, the petitioner bears the ultimate burden of establishing eligibility for the benefit sought. The petitioner's burden is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1 984).

The first issue in the present matter is whether the petition in this matter was properly revoked because the petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive capacity.

Section lOl(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A), provides:

The term "managerial capacity" means an assignment within an organization in which the employee primarily--

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential h c t i o n 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 fhnction 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. 3 1101(a)(44)(B), provides:

The term "executive capacity" means an assignment within an organization in which the employee primarily-

(i) directs the management of the organization or a major component or finction 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 fiom higher level executives, the board of directors, or stockholders of the organization.

In this matter, the petitioner does not clearly state in the underlying petition whether the beneficiary will be employed in a managerial or an executive capacity. Due to the lack of clarity, the AAO will assume that the petitioner is claiming that the beneficiary will be employed in either a managerial or executive capacity and will consider both classifications on appeal. The AAO reviews appeals on a de novo basis. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989).

In the Form 1-129, the petitioner claims to be a property management business and to employ four workers. The petitioner describes the beneficiary's proposed duties as "general manager" of this enterprise, and the staffing of the business, in a letter dated November 1,2005 as follows:

As General Manager of [the petitioner], [the beneficiary] will continue to be responsible for the overall operation of the company (1 5%) in addition to:

Defining and implementing company's goals and policies (1 5%) Supervising the administration and marketing managers (10%) Organizing weekly meetings with managerial employees to set up goals and review company's progress (5%) Meeting with accounting and legal representatives (5%) Negotiate with independent contractors for maintenance services (5%) Meet and negotiate contract services for main clients (20%) Establish financial goals and set up expenditures projections (10%) Attend Chamber of Commerce's meetings and luncheons along with other network organizations (5%) Report to member's [sic] abroad (5%) Visit properties and client's premises to assure quality of services (5%)

[The petitioner] currently has 3 direct employees in addition to [the beneficiary] consisting of an Administrative Manager, Marketing Manager and a Customer Service Representative. In addition, we also hire independent contractors for the lawn care, swimming pool maintenance and cleaning service.

The petitioner also submitted an organizational chart for the United States operation. The chart shows the beneficiary at the top of the organization directly supervising the administrative manager and the marketing manager. The administrative manager is shown, in t m , as supervising the customer service representative.

Finally, the petitioner described the duties of the administrative manager as follows:

Provide general administrative support such as typing, answering phones, filing paperwork, receiving and reconciling invoices, processing expense reports, receiving and distributing department mail, shipping training materials, maintaining supplies, and coordinating meetings Maintain current knowledge of each assigned property Prepare service contracts and follow-up with clients Prepare and distribute memos, notices and other correspondence to clients Review application packages for sales and rentals Coordinate all property inspections Assist with contractor selection process Communicate with clients as needed Maintain database of clientele and properties being serviced Report to General Manager.

On December 8,2006, the director approved the petition.

On September 19, 2007, the director issued an NOIR. In the NOIR, the director indicated, inter alia, that the record does not establish that the beneficiary will be primarily employed in a managerial or executive capacity. Instead, the director noted that it appears the beneficiary will be, at most, a first-line supervisor of non- professional employees. The director also indicated that the record does not establish that the petitioner was "doing business" for one year prior to the filing of the petition.

In response, counsel claims in a letter dated October 15, 2007, that the beneficiary is a "function manager" and that the subordinate employees and intermittently engaged independent service providers, e.g., a handyman, a lawn service, an accountant, and a carpet cleaner, relieve the beneficiary of the need to primarily perform non- qualifying duties.

Counsel also submits a list of the petitioner's employees and their ascribed duties, which is largely identical to the evidence submitted with the initial petition. However, the new list omits the customer service representative and indicates that the administrative manager performs the duties previously ascribed to this worker. Accordingly, it appears that the beneficiary is now directly supervising two workers who perform the tasks necessary to provide a service.

On April 15,2008, the director revoked the petition. The director concluded that the petitioner failed to establish in part that the benefieiary will be employed in a primarily managerial or executive position in the United States.

On appeal, counsel argues that the record establishes that the beneficiary will primarily perform qualifying duties in the United States.

Upon review, counsel's assertions are not persuasive and the appeal will be dismissed.

In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's description of the job duties. See 8 C.F.R. 4 204.5Cj)(5). The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990).

In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a day-to-day basis. For example, the petitioner states that the beneficiary will be "responsible for the overall operation of the company" and will define and implement goals and policies. However, the petitioner fails to specifically describe these goals and policies or explain what, exactly, the beneficiary will do to be "responsible for the overall operation of the company" other than act as a first-line supervisor of three claimed property management employees. The fact that the petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description which includes inflated job duties does not establish that the beneficiary will actually perform managerial or executive duties. 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. Id. 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 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).

Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform qualifying duties in his operation of the enterprise. To the contrary, it appears more likely than not that the beneficiary will primarily perform first-line supervisory, administrative, and operational tasks. As the beneficiary's subordinate workers have not been established to be managerial, supervisory, or professional (see infra), it has not been established that the first-line supervisory tasks associated with the beneficiary's supervision of these workers will be qualifying duties. Furthermore, absent evidence to the contrary, the record is not persuasive in establishing that the other duties ascribed to the beneficiary will be truly managerial or executive in nature. For example, the petitioner claims that the beneficiary will devote substantial periods of time to meet with accountants and lawyers, negotiate with service providers, attend meetings, and visit managed properties. However, these duties do not appear to be managerial or executive in nature. Accordingly, it appears that the beneficiary will more likely than not "primarily" perform non- qualifying administrative, operational, or first-line supervisory tasks. An employee who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988).

The petitioner has also failed to establish that the beneficiary will supervise and control the work of other supervisory, managerial, or professional employees, or will manage an essential fbnction of the organization. As asserted in the record, the beneficiary will directly or indirectly supervise approximately three subordinate workers. Although the petitioner claims that one of these employees is a supervisory or managerial employee, the record is not persuasive in establishing that the "administrative manager" is a bona fide

supervisor or manager. The petitioner does not describe this worker as having supervisory responsibilities or duties. To the contrary, it appears that this worker primarily performs clerical tasks necessary to the business and is not truly supervising the customer service representative. An employee will not be considered to be a supervisor simply because of a job title or because he or she supervises daily work activities and assignments. Rather, the employee must be shown to possess some significant degree of control or authority over the employment of subordinates. 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 managerial position. In this matter, the petitioner has not established that the reasonable needs of the United States operation compel the employment of a managerial or executive employee to oversee one or more subordinate supervisors. To the contrary, it is more likely than not that the workers are all primarily performing non- quaIi@ing tasks. See generally Family, Inc. v. US. Citizenship and hmigration Services, 469 F.3d 13 13 (9" Cir. 2006). Accordingly, it appears that the beneficiary will be, at most, the first-line supervisor of the non- professional subordinate employees. A managerial employee must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Finally, as the petitioner failed to establish the skills necessary to perform the duties of the subordinate positions, the petitioner has not established that the beneficiary will supervise professional employees.'

Furthermore, the record does not establish that the beneficiary will primarily manage an essential function of the organization. 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 101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary will manage an essential function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the function with specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. $ 5 204.5(j)(2) and (5). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than perform the tasks

1 In evaluating whether the beneficiary will manage professional employees, the AAO must evaIuate 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. 5 1 101(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. 8 17 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education required by the position, rather than the degree held by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an employee is employed in a professional capacity as that term is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is actually necessary to perform the duties of any of the subordinate positions.

related to the function.

In this matter, the petitioner has not established that the beneficiary will manage an essential function. The petitioner's vague job description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained above, the record indicates that the beneficiary will more likely than not primarily perform non-qualifying tasks and be a first-line supervisor of non-professional workers. Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.

Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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 101(a)(44)(B) of the Act. 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-day 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. For the same reasons indicated above, the petitioner has failed to establish that the beneficiary will act primarily in an executive capacity. The beneficiary's job description is so vague that it cannot be discerned what, exactly, the beneficiary will do on a day-to-day basis. Also, as explained above, it appears more likely than not that the beneficiary will primarily perform administrative or operational tasks and work as a first-line supervisor of non-professional workers. Therefore, the petitioner has not established that the beneficiary will be employed primarily in an executive capacity.

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 at 13 16 (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991)); Fedin Bros. Co. v. Suva, 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 COT. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

Accordingly, as the record does not establish that the beneficiary will primarily perform managerial or executive duties, the petition was properly revoked, and the petition may not be approved for that reason.

The second issue in the present matter is whether the petition was properly revoked because the record does not establish that the prospective United States employer has been "doing business" for at least one year. 8 C.F.R. 9 204.5(j)(3)(D). "Doing business" is defined in pertinent part as "the regular, systematic, and continuous provision of goods and/or services." 8 C.F.R. § 204.5(j)(2).

The instant petition was filed on November 14, 2005. In support of its claim to have been "doing business" for at least one year, the petitioner submitted, inter alia, bank account statements, tax returns, wage reports, licenses, financial statements, and copies of eight "Property Management Agreements" pertaining to the various properties the petitioner purportedly manages. The Agreements obligate the petitioner to secure tenants, collect rents, and generally care for the properties in exchange for $100.00 monthly payments plus the first months' rents. However, the petitioner did not submit evidence that it has received any of these payments or that it has in fact found tenants for any of these properties.

On September 19, 2007, the director issued an NOR. In the NOIR, the director indicated, inter alia, that the record does not establish that the petitioner was "doing business" for at least one year prior to the filing of the petition.

In response, counsel submits evidence indicating that the petitioner had intermittently compensated third party service providers during the one-year period prior to the filing of the petition. The petitioner also submits an unsigned copy of its 2005 tax return. However, the petitioner did not submit any evidence that it received any compensation from its "property management" customers prior to the filing of the instant petition. The petitioner also submitted business records dated after the filing of the instant petition.

On April 15,2008, the director revoked the petition. The director concluded that the petitioner failed to establish that the prospective United States employer has been "doing business" for at least one year. 8 C.F.R. 204.50)(3)@).

On appeal, counsel argues that the record establishes that the petitioner was doing business for at least one year prior to the filing of the petition.

Upon review, counsel's assertions are not persuasive and the appeal will be dismissed.

As correctly noted by the director, the record is devoid of evidence that the petitioner was engaged in the "the regular, systematic, and continuous provision of goods and/or services" for at least one year prior to the filing of the petition on November 14, 2005. 8 C.F.R. § 204.50)(2). Although the record contains copies of "Property Management Agreements," the petitioner did not submit evidence that it was ever compensated by customers pursuant to the Agreements. Merely signing agreements to manage properties, or paying wages to contractors and employees, does not establish that the petitioner was actually engaged in the regular, systematic, and continuous provision of a service. Once again, going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190. Furthermore, it is noted that the submitted business records pertaining to business activity occurring after the filing of the instant petition are not relevant to determining whether the petitioner was engaged in business for at least one year prior to the filing of the

SRC 06 035 51277 Page 11

petition on November 14, 2005. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date aRer the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971).

Accordingly, the petition was properly revoked, because the record does not establish that the prospective United States employer has been "doing business" for at least one year. 8 C.F.R. 8 204.50')(3)(D).

As a final note, USCIS records indicate that the beneficiary has previously been approved for L-1 employment with the instant petitioner. However, with regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny by USCIS than nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and executive capacity. See $8 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 1101(a)(44). Although the statutory definitions for managerial and executive capacity are the same, the question of overall eligibility requires a comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. There are significant differences between the nonirnrnigrant visa classification, which allows an alien to enter the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. CJ: $8 204 and 214 of the Act, 8 U.S.C. $8 1154 and 1184; see also $ 316 of the Act, 8 U.S.C. 8 1427.

In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval of an L-1 extension without any supporting evidence and USClS normally accords the petitions a less substantial review. See 8 C.F.R. 9 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an L-1A petition's validity). Because USCIS spends less time reviewing Form 1-129 nonimmigrant petitions than Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that USCIS approves some petitions in error).

Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do not preclude USCIS from denying an extension petition. See e.g. Texas A & . Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103.

Furthermore, 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. 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 USCIS 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).

In addition, 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 nonirnmigrant 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 11 39 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).

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. tj 1361. The petitioner has not sustained that burden.

ORDER. The decision of the director is affirmed and the petition is revoked.

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