dismissed H-1B Case: Marketing

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PUBLIC COpy
U.S. Departmentof HomelandSecurity
20 Mass. Ave.. N.W., Rm. A3042
Washington. DC 20524
U.S.Citizenship
and Immigration
Services
FiLE:
INRE:
WAC 04 00653577
Petitioner:
Beneficiary
Office: CA.LIFO&''JIA SERVICE CENTER
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOI(a)(l5)(H)(i)(b) ofthe
Immigration and Nationality Act, S U .S.C. § 1101 (a)( 15){H)(i){b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This lS 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. Director
Administrative Appeals Office
www.uscis.gov
WAC 04 00653577
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition. The petitioner filed a
subsequent appeal. The Administrative Appeals Office (AAO) rejected the appeal without rendering a
decision because the appeal was filed by counsel on behalf of the beneficiary who is not a recognized party in
these proceedings pursuant to 8 C.F.R. § I03.2(a)(31. The matter is now before the AAO on a motion to
reconsider. The motion will be dismissed.
The petitioner is a hotel that seeks to employ the beneficiary as a marketing director. The petmoncr
endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section
10f(a)( 15)(H)(iXb) of the Immigration and Nationality Act (the Act). 8 U.s.C. § 110 1(a)( 15;(H)(i)(b).
The director denied the petition on August 3,2004. On September 7, 2004, counsel for the beneficiary filed
an appeal seeking review of the director's decision. After reviewing the record, the AAO rejected the appeal
as having been improperly tiled by counsel on behalf of the beneficiary. The Form G-28, Entry of
Appearance as Attorney or Representative, that was submitted in conjunction with the filing of the appeal was
signed by the beneficiary, not by an authorized representative of the petitioner. Counsel noted on the I-290B
(Notice of Appeal) that he represented th... beneficiary, not the petitioner. A G-28 signed by the petitioner was
not submitted with the filing of the appeal. Citizenship and Immigration Services (CIS) regulations
specifically prohibit a beneficiary of a visa petition, or a representative acting on a beneficiary's behalf, from
filing a petition. The beneficiary of a visa petition is not a recognized party in a proceeding. 8 C.f.R.
§ 103.2(a)(3), As the beneficiary and his representative are not recognized parties, counsel is 110t authorized
to file all appeal. 8 C.F.R. § 103.3(a)(J )(iii)(B). As the appeal was not properly filed, it was properly
rejected. 8 C.F.R. § l03.3(a)(2}(v)(A)(l).
The petitioner has now filed a motion seeking to reconsider the rejected appeal.
A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinent
precedent decisions to establish that the decision was based on an incorrect application of law or CIS policy;
and en establish that the decision was incorrect based on the evidence of record at the time of the initial
decision. 8 C.F.R . § 103.5(a)(3). The petitioner. on appeal, has not indicated by precedent decision or policy
memorandum that the AAO's decision was incorrect when issued. Thus, the motion to reconsider will be
dismissed.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361.
The petitioner bas failed to sustain that burden and the motion shall accordingly be dismissed.
ORDER: The motion is dismissed.