dismissed H-1B Case: Healthcare Staffing

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U.S. Department of Homeland Security
20 Massachusetts Ave. NW, Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
Fll..E: SRC 05 173 50652 Office: TEXAS SERVICE CENTER Date: MAR 06 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(H)(i)(b) I of the
Immigration and Nationality Act, 8U.S.C. § 1l01(a)(15)(H)(i)(b)
ON BEHALFOF PETITIONER:
INSTRUCTIONS:
Self-represented
This is the decision of the Administrative Appeals Office in your case. All materials have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
flJLt~~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 173 50652
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on
appeal before the Administrative Appeals Office (AAO). The appeal will. be summarily dismissed. The
petition will be denied.
. The petitioner is a healthcare staffing business. It seeks to employ the beneficiary as a pharmacist intern /
pharmacist and to classify him as a nonimmigrant worker in a specialty occupation pursuant to section
101(a)(15)(H)(i)(b) ofthe Immigration and Nationality Act (the Act), 8 U.S.c. § 1l01(a)(l5)(H)(i)(b).
The director denied the petition on multiple grounds. The director found that the evidence of. record
failed to establish whether the petitioner or another corporate entity, would be the
beneficiary's employer or agent, which of those two entities would pay the beneficiary, and whether the
two entities are the same company, as the petitioner claims. The director cited a professional staffing
services agreement between . and whereby the former: would
provide a pharmacist intern to the latter, but found that the agreement did not constitute an itinerary of
definite employment for the period of requested H-1B employment because it does not identify an address
where the beneficiary would work or the dates of his employment. The director once again noted that the
record did not establish that . and the petitioner are the same, entity. The ~irector
concluded that the petitioner had failed to meet its burden of proof, under section 291 of the Act, to
establish the beneficiary's eligibility for H-lB classification.
On appeal the petitioner refers to the director's request for evidence (RFE) issued on June 8, 2005 and
asserts that in her decision the director stated that the petitioner had a 12-week period in which to respond
to the RFE and that "[a]s of the date of this letter, this office has not received a response to.the request."
The petitioner states that it submitted a package of materials on August 19, 2005, which was within the
12-week response period specified in the RFE. "A copy of the entire packet" is resubmitted with the
appeal, the petitioner states, "to facilitate approval ofthe requested H-1B petition."
The petitioner's assertion that the service center mistakenly failed to consider timely filed evidence is
erroneous. The director's decision did not include the language quoted by the petitioner - "As of the date
of this letter, this office has not received a response to the [RFE)." To the contrary, the director
specifically acknowledged the receipt of a timely response from the petitioner by stating thai "[tjhe
Service received the response [to the RFE] on August 22, 2005." The evidence submitted in response to
the RFE was considered and discussed by the director in her decision. The materials submitted in support
of the appeal are the same materials that were originally prepared in response to the RFE, though two
items - the "Aegis Staffing Scheduler Roster" and the :' list ­
appear to be submitted for the first time on appeal.
The sole basis of the petitioner's appeal is the erroneous statement that the service center failed to
consider the evidence submitted in response to the RFE. The director expressly stated in her decision that
the petitioner's evidence had been received and considered. The regulation at 8 c.F.R. § 103.3(a)(l)(v)
provides that "[a]n officer to whom an appeal is taken shall summarily dismiss any appeal when the party
concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the
appeal." The petitioner has not specifically identified any erroneous conclusion of law or statement of
fact in the director's decision. Accordingly, the appeal will be summarily dismissed.
SRC 05 173 50652
Page 3
ORDER: The appeal is dismissed. The petition is denied.