dismissed H-1B Case: Automotive Services

identifling data deleted to 
prevent clearly unwarranted 
invasion of personal privb~y 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: SRC 03 086 50597 Office: TEXAS SERVICE CENTER Date: JUN 1 3 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
b 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 03 086 50597 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed. 
The petitioner is an automobile commercialization and servicing company engaged in the servicing of 
automobiles. It seeks to employ the beneficiary as a manager of mechanics and endeavors to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 10 l(a)(l 5)(H)(i)(b). 
As stated in 8 C.F.R. 3 103.3(a)(l)(v), an appeal shall be summarily dismissed if the party concerned fails to 
identify specifically any erroneous conclusion of law or statement of fact for the appeal. The director determined 
that the proffered position is not a specialty occupation, that the beneficiary is not qualified to perform the duties 
of a specialty occupation, and that the Labor Condition Application (LCA) filed in relation to the position of 
manager of mechanics was not certified prior to the filing of the initial petition. The initial Form 1-129 petition 
was filed on January 3 1,2003. The LCA for the position of manager of mechanics was certified on September 8, 
2003. Accordingly, the petition was denied. 
On appeal, the petitioner states that an experiential evaluation prepared stablishes that 
the beneficiary has the equivalent of a bachelor's degree in business administration from an accredited college 
or university in the united States, and that the beneficiary is, therefore, qualified to perform the duties ofla 
specialty occupation. The petitioner further indicates that the Occupational Information Network's (O*NET) 
classification of the offered position establishes that it is a specialty occupation. The petitioner did not, 
however, specifically identify any erroneous conclusion of law or statement of fact upon which the appeal is 
based with reference to the director's decision that a certified LCA was not obtained prior to the filing of the 
Form 1-129 petition as required by 8 C.F.R. 9 214.2(h)(4)(i)(B)(l). The appellant must do more than simply 
ask for an appeal. It must clearly demonstrate the basis for the appeal. One reason for the director's denial 
specifically referred to the untimely certification of the LCA. The appellant did not identify any erroneous 
conclusion of law or statement of fact with respect to this issue. As such, the appeal must be dismissed. 
It should further be noted that the initial Form 1-129 petition filed and signed by counsel was for the position 
of a financial analyst. Counsel now states that the petition was prepared by his paralegal who misrepresented 
him before the petitioner and prepared a false petition for the position of financial analyst. Counsel signed the 
petition yet states that he was unaware of its contents. Counsel then sought to submit an amended petition for 
a manager of mechanics based upon the fraudulent petition prepared by his paralegal. In support of his 
request to amend the petition, counsel submitted an affidavit from the petitioner detailing the actions of 
counsel's paralegal, a letter from bar counsel for the Florida Bar Association referencing an unlicensed 
practice of law investigation of counsel's paralegal based on a complaint filed by counsel, and an affidavit 
signed by counsel. Based upon these submissions, the director inappropriately considered the amended 
petition submitted on behalf of the petitioner. The AAO finds that the director misapplied the law relating to 
ineffective assistance of counsel, and should not have allowed the petitioner to amend the petition. Any 
appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim be 
supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was 
entered into with counsel with respect to the actions to be taken and what representations counsel did or did 
not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned 
be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the 
appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with 
respect to any violation of counsel's ethical or legal responsibilities, and if not, why 
SRC 03 086 50597 
Page 3 
not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), afld, 857 F.2d 10 (1st Cir. 1988). In this instance, 
counsel seeks to file an amended petition based upon the unauthorized practice of law by a member of his 
staff even though counsel himself signed the very petition that he claims was fraudulently prepared without 
his knowledge. The record does not reflect that a complaint was filed with disciplinary authorities with 
respect to any violation of counsel's ethical or legal responsibilities, or indicate why such complaint was not 
filed. As such, the director should not have considered the amended petition. 
Counsel fails to specify how the director made any erroneous conclusion of law or statement of fact in denying 
the petition with respect to the filing of the LCA. As neither the petitioner nor counsel presents additional 
evidence on appeal to overcome the decision of the director in that regard, the appeal will be summarily dismissed 
in accordance with 8 C.F.R. 9 103.3(a)(l)(v). 
The burden of proof in this proceeding rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.