dismissed L-1A Case: Recreational And Educational Services

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.PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 06 19951473 Office: CALIFORNIA SERVICE CENTER Date:
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)(l5)(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.
r P. Wiemann,ChiT
tr: Appeals Office
www,uscis.gov
WAC 06 19951473
Page 2
DISCUSSION: The Director, California 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 recreational and educational services promoter and organizer. It seeks to
extend its authorization to employ the beneficiary temporarily in the United States as its president and general
manager pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§1101(a)(15)(L). The director denied the petition based on the conclusion that the petitioner failed to
establish that: (1) the beneficiary has been and will continue to be employed in a managerial or executive
capacity; and (2) a qualifying relationship exists between the petitioner and the foreign entity.
On appeal, counsel for the petitioner indicated on Form 1-290B that he was not submitting a separate brief or
evidence to address the director's denial. Counsel merely provided the following statement in support of the
appeal:
The Decision of the California Service Center erroneously denies [the petitioner's] 1-129
Petition for Extension of L-1A Classification for [the beneficiary]. Information and
documentation submitted with the Petition demonstrates that the beneficiary has and will
continue to be employed in an executive and managerial capacity and that the qualifying
relationship between the Colombian Parent Company and its US Subsidiary exists.
This statement on the Form 1-290B fails to adequately address the director's conclusions. Counsel asserts that
the decision was erroneous, but fails to specifically identify any erroneous conclusion of law or statement of
fact on the director's part. The director performed a thorough analysis of the record, and for each basis for the
denial provided examples of deficiencies in the petitioner's evidence. For example, with regard to the
beneficiary's managerial and/or executive capacity, the director noted that (1) the claimed duties of the
beneficiary were too broad and nonspecific to convey a true understanding of the beneficiary's daily tasks; (2)
as the petitioner's sole employee, the evidence suggested that the beneficiary was responsible for tasks
necessary to provide the petitioner's services; (3) the petitioner had failed to establish that the beneficiary
would be supervising a subordinate staff of managers, professionals, or supervisors; and (4) the petitioner had
failed to clarify how the reasonable needs of the petitioner at its current stage of development would justify
the beneficiary participating in non-qualifying duties.
Regarding the qualifying relationship, the director found that the record lacked sufficient evidence to support
a conclusion that the petitioner was a subsidiary of the foreign entity. Specifically, the director noted that in
addition to the foreign entity's failure to demonstrate that it had been doing business,' the petitioner had failed
to submit sufficient evidence of the transfer of stock ownership from the petitioner to the foreign entity. The
director noted that the submission of a wire transfer, showing the transfer of $20,720 from the foreign entity
to the petitioner, did not clearly support a finding that the foreign entity designated these funds for the
purchase of stock. Second, the director noted that the petitioner's U.S. Corporation Income Tax Return for
1 It is noted that, upon review of the record, translated copies of the foreign entity's tax return and invoices for
2005 are included in the record. The tax return, filed in April 2006, demonstrate that the foreign entity had
significant income and expenses. Therefore, contrary to the director's findings, the AAO is satisfied that the
foreign entity was doing business as required by the regulations. The AAO concurs, however, with the
director's findings regarding the failure to demonstrate a qualifying relationship.
WAC 06 19951473
Page 3
2005 indicated on Schedule K, lines 5 and 7, that no corporation or other entity owned more than 50% of the
petitioner, and that no foreign person or entity owned more than 25% of the petitioner. The director noted
that this inconsistency with regard to the petitioner's claim cast doubt upon the validity of the petitioner's
claims, and the AAO agrees. It is incumbent upon the petitioner to resolve any inconsistencies in the record
by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988).
Counsel's general objections on the Form I-290B, without specifically identifying any errors on the part of
the director, are 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)). While the petitioner may request that it be granted additional time to submit an appeal, no
such request was made in this case. See 8 C.F.R. § 103.3(a)(2)(vii). Even if additional time to submit a brief
in support of the appeal had been requested and approved, 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.
As stated above, absent a clear statement, brief and/or evidence to the contrary, the petitioner does not
identify, specifically, any erroneous conclusion of law or statement of fact. Hence, the appeal must be
summarily dismissed. See 8 C.F.R. § 103.3(a)(l)(v).
Regulations at 8 C.F.R. § 103.3(a)(l)(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.
Contrary to the petitioner's assertions, the information and documentation submitted with the petition do not
establish eligibility in this matter. Rather, the record shows a number of deficiencies as outlined by the
director, and counsel's assertion that the evidence prior to adjudication satisfied the regulatory requirements is
simply insufficient to overcome the director's bases for denial. In the instant case, the petitioner fails to
acknowledge or address the director's reasons for the denial. Accordingly, the appeal will be summarily
dismissed.
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of
approval of the petition to support an executive or managerial position. There is no provision in U.S.
Citizenship and Immigration Services (USCIS) regulations that allows for an extension of this one-year
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an
extension.
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.
WAC 0619951473
Page 4
ORDER: The appeal is summarily dismissed.