dismissed L-1A Case: Fire Protection

identifyingdatadeleted ~
preventcle~~~~aqinvasionof ~1~"'" pnv
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W. Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICCQPY
FILE: EAC 06 16954323 Office: VERMONT SERVICE CENTER
1).1
Date: AlAi 0 3 2007
INRE: 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)(15)(L)
ON 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.
~~~~
Administrative Appeals Office
www, uscis.gov
EAC 06 16954323
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now,before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily
dismissed.
The petitioner states that it is a supplier of fire protection systems. It seeks to employ the beneficiary as a
nonimmigrant intracompany transferee pursuant to § 101(a)(l5)(L) of the Immigration and Nationality
Act, 8 U.S.C. 1101(a)(l5)(L) in the position of fire protection specialist. The director denied the petition
based on the conclusion that the petitioner failed to establish that the beneficiary has been or would be
employed in a primarily managerial or executive capacity.
On appeal, counsel for the petitioner indicated on the Notice of Appeal (Form I-290B) that she would
submit a brief and/or additional evidence to address the director's denial within thirty days. Although
counsel submitted an explanatory statement on Form I-290B, she failed to address the director's
conclusions. In this brief statement, counsel stated:
The Service Center opinion is wrong on the law, gives no weight or credence to valid,
uncontroverted evidence, and does not include a meaningful analysis of the facts and
evidence presented, specifically with respect to the beneficiary's duties as a functional
manager as required in EAC-99-189-51397 (AAO, Jan. 18,2001).
Counsel's general statement on the Form I-290B did not address or specifically identify any errors on the
part of the director, and is simply insufficient to overcome the well-founded and logical conclusions the
director reached based on the evidence submitted by the petitioner. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. 158,165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972)).
On the Form I-290B received on July 21,2006, counsel for the petitioner clearly indicated that she would
send a brief with the necessary evidence to the AAO within thirty days. According to 8 C.F.R. §
103.3(a)(2)(i), the petitioner "shall file the complete appeal including any supporting brief with the office
where the unfavorable decision was made within 30 days after service of the decision," which in the case
at hand would be no later than Monday, July 24, 2006. Although the petitioner requested additional time
to submit its arguments on appeal, to date there is no indication or evidence that the petitioner ever
submitted a brief and/or evidence in support of the appeal with the Service or with the AAO.
On March 27,2007, the AAO sent a fax to counsel. The fax advised counsel that no evidence or brief had
ever been received in this matter and requested that counsel submit a copy of the originally submitted
brief and/or additional evidence, if in fact such evidence had been submitted, within five business days.
On that same day, the AAO received a fax from counsel's office, in which counsel affirmed that no brief
had been submitted within the allotted time period.
EAC 06 169 54323
Page 3
Despite the lack of argument or additional evidence submitted on appeal, the AAO notes that counsel
specifically objects to the director's findings with regard to the function manager analysis. A review of
the record, however, indicates that the director's decision was warranted. 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, 8 U.S.C. § 1101(a)(44)(A)(ii). In this matter, the fact that the beneficiary is
not managing and will not manage a subordinate staff is not disputed. Although the petitioner claims that
subcontractors are retained to perform the fire installation services, the record is insufficient to
demonstrate that the beneficiary is elevated to a primarily managerial position by virtue of the presence of
subcontractors. In light of this factor, the director properly evaluated the beneficiary's eligibility as a
function manager, since the petitioner claims that the beneficiary manages this aspect of the petitioner's
business.
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the
beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly
describes the duties to be performed, 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. 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs
the duties related to the function. An employee who primarily performs the tasks necessary to produce a
product or to provide services is not considered to be employed in a managerial or executive capacity.
Boyang, Ltd. v. I.NS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has not
provided evidence that the beneficiary manages an essential function. Instead, it appears upon review of
the record that the beneficiary is engaged in the actual installation and design of the petitioner's fire
protection services, thereby negating the claim that he is a function manager. Upon review, the AAO
concurs with the director's analysis and conclusions on this issue.
Nevertheless, as stated above, absent a timely filed and clear statement, brief and/or evidence to the
contrary, the petitioner does not identify, specifically, an erroneous conclusion of law or statement of fact.
Hence, the appeal must be summarily dismissed. See 8 C.F.R. § 103.3(a)(I)(v).
Regulations at 8 C.F.R. § 103.3(a)(1)(v) state, in pertinent part:
An 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.
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. Inasmuch as counsel has failed to identify
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not
sustained that burden. Therefore, the appeal will be summarily dismissed.
EAC 06 169 54323
Page 4
ORDER: The appeal is summarily dismissed.