dismissed L-1A Case: Construction

identifyingdatadeletedto
preventclearlyunwBft'lDlld
invasionofpersonalpriWM:f
PUBLIC·COl'Y
Ll.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 04 085 51663
AUG 032007
Office: TEXAS SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
« .~y
Ro:e~~Chief
Administrative Appeals Office
www.uscis.gov
SRC 04 085 51663
Page 2
DISCUSSION: The Director of the Texas Service Center denied the nonimmigrant visa petition and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected
pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(1).
The petitioner is a Texas limited liability company allegedly engaged in the construction business. The
petitioner seeks to extend the employment of the beneficiary as its president as an L-lA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(l5)(L). The director denied the petition after concluding that the petitioner failed to
establish that the beneficiary will be employed in a managerial or executive capacity.
The regulation at 8 C.F.R. § 103.3(a)(2)(i) requires an affected party to file the complete appeal within 30 days
after service of the decision, or, in accordance with 8 C.F.R. § 103.5a(b), within 33 days if the decision was
served by mail. The record indicates that the decision of the director was mailed and faxed on April 1, 2004.
Although there was an attempt to file an appeal on May 3, 2004, the Texas Service Center properly rejected the
appeal, because the Form I-290B was unsigned. The Texas Service Center promptly returned the appeal
documents along with a rejection notice. The appeal was filed with an executed Form I-290B on May 12,2004,
41 days after the decision was mailed. Thus, the appeal was not timely filed.
The regulation at 8 C.F.R. § 103.2(a)(l) requires that all documents submitted to a service center be executed and
filed in accordance with the instructions on the form. Further, 8 C.F.R. § 103.2(a)(7)(i) provides that "[a]n
application or petition which is not properly signed ... shall be rejected as improperly filed" and that "[r]ejected
applications and petitions ... will not retain a filing date." Therefore, the attempt to file an appeal with an
unsigned I-290B on May 3, 2004 did not extend the time to file a properly executed appeal beyond the 33 rd day.
The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a
motion to reopen as described in 8 C.F.R. § 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R.
§ 103.5(a)(3), the appeal must be treated as a motion, and a decision must be made on the merits of the case. The
official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case
the service center director. See 8 C.F.R. § 103.5(a)(l)(ii). The director declined to treat the late appeal as a
motion and forwarded the matter to the AAO.
Furthermore, upon review, the AAO would agree with the director's decision and would dismiss the instant
appeal on the merits, if it were not being rejected as untimely filed. As correctly noted by the director, the
petitioner has failed to establish that the beneficiary will be employed in the United States in a primarily
managerial or executive capacity as defined in section 101(a)(44) of the Act, 8 U.S.C. § 1101(a)(44). 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. § 2l4.2(l)(3)(ii). In this matter, the petitioner has provided a vague
and nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary will do
on a day-to-day basis. 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), aff'd, 905 F.2d
41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not sufficient for purposes
SRC 04 085 51663
Page 3
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec.
190 (Reg. Comm. 1972).
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
or executive capacity. To the contrary, the record establishes that the beneficiary will be employed primarily
as a first-line supervisor of non-professional 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. 593, 604 (Comm. 1988).
It also appears that the beneficiary will perform the tasks necessary to produce a product or to provide a
service, e.g., sales 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 1 o1(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial
or executive duties); see also Matter ofChurch Scientology International, 19 I&N Dec. at 604. As the record
does not establish that the petitioner will employ a subordinate staff capable of relieving the beneficiary of the
need to perform non-qualifying tasks, it has not been established that he will primarily perform qualifying
duties.
ORDER: The appeal is rejected.