dismissed L-1A Case: Tourism

identifying data del~ to 
-vent clearly unwarranted 
inv~ion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W. Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: SRC 03 149 52360 Office: TEXAS SERVICE CENTER Date: AUG 0 2 2006 
IN RE: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101(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 
SRC 03 149 52360 
Page 2 
DISCUSSION: The Director, Texas Service Center, revoked the petition for a nonimmigrant visa. The 
petitioner filed an untimely appeal, which was treated as a motion by the ~irector.' The previous 
decision of the Director was upheld, and 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 safari and hunting tour company. On June 5, 2003, its petition to employ 
the beneficiary as its marketing operations manager as a nonimmigrant intracompany transferee pursuant 
to 9 10 1 (a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1 101(a)(15)(L), was approved. Upon 
further review, a notice of intent to revoke was issued on August 28, 2004. The petitioner responded to 
the notice on September 15, 2004, and after review of the petitioner's assertions, the director revoked the 
petition on October 25,2004. 
Counsel for the petitioner appealed the revocation. The appeal, which was untimely filed, was treated as 
a motion to reopen andor reconsider by the director.' Upon review of its contents, the director concluded 
that the appeal did not meet the qualifications of a motion since it failed to state any new facts supported 
by affidavits or documentary evidence or provide adequate reasons for reconsideration accompanied by 
precedent decisions establishing that the decision was based on an incorrect application of law or service 
policy. See 8 C.F.R. $5 103.5(a)(2)-(3). 
On appeal, counsel for the petitioner indicated on Form I-290B that it would submit a brief andlor 
additional evidence within thirty days. Although counsel submitted a brief statement on the Form I-290B, 
he failed to adequately address the director's conclusions with regard to the revocation of the petition and 
the subsequent denial of the petitioner's motion. In this brief statement, counsel asserts that the director's 
dismissal of the motion was in error, and contends that the petitioner did in fact meet the requirements of 
a motion, asserting: "[tlhe Motion did, in fact state appropriate reasons, namely that the subject decision 
of 10125104 completely disregarded relevant, 'essential function' elements of the statutory and regulatory 
definition of 'managerial capacity."' In addition, counsel contends that "it was simply not necessary to 
cite "any pertinent precedent decisions' in support of the Motion's position that the decision failed to 
follow the plain language of the Immigration and Nationality Act, and Code of Federal Regulations, 
wherein the pertinent term 'managerial capacity' is defined. 
The regulation at 8 C.F.R. §103(a)(2) states: 
1 The AAO notes that the director erred in treating the petitioner's filing as an appeal and treating the late 
appeal as a motion, since counsel for the petitioner clearly indicated that the filing was submitted as a 
motion to reconsider. As a result, the motion should have been rejected by the director since it was filed 
late and there was insufficient evidence to establish that the late filing was beyond the control of counsel 
andor the petitioner. However, regardless of the manner in which the filing was treated, the petitioner 
would not have succeeded in either event. The director's actions, therefore, constitute harmless error in 
this matter, and his decision and treatment of the filing will not be disturbed. 
2 The notice of revocation dated October 25, 2004 was mailed on October 27, 2004. Therefore the 
petitioner's appeal of the revocation was due no later than Monday, November 29, 2004. The appeal, 
however, was not received until Tuesday, November 30,2004. 
SRC 03 149 52360 
Page 3 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 
Additionally, the regulation at 8 C.F.R. 8 103(a)(3) states: 
A motion to reconsider must 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. A motion to reconsider a decision on an application or 
petition must, when filed, also establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 
Counsel's general objection on the Form I-290B, without specifically identifying any errors on the part of 
the director, 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 of Sofici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornrn. 1972)). 
On the Notice of Appeal received on January 3, 2005, counsel for the petitioner clearly indicates that it 
would send a brief with the necessary evidence [to the AAO] within thirty days. According to 8 C.F.R. 8 
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 Thursday, January 13, 2005. 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. 8 
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.~ Counsel in this matter merely 
contends that the director's dismissal of the motion was erroneous, without specifically articulating the 
manner in which the director's conclusions were incorrect. As stated above, absent a clear statement, 
brief and/or evidence to the contrary, the petitioner does not identify, specifically, an erroneous 
conclusion of law or statement of fact.4 Hence, the appeal must be summarily dismissed. See 8 C.F.R. 8 
103.3(a)(l)(v). 
On June 19,2006, the AAO sent a fax to counsel. The fax advised counsel that no evidence or brief had 
been received in this matter and requested that counsel submit a copy of the brief and/or additional 
evidence, if in fact such evidence had been submitted, within five business days. As of the date of this 
decision, the AAO has received no response from counsel or the petitioner. 
4 
It is noted that on appeal, counsel claims that the beneficiary is qualified as a function manager. This 
claim is invalid for two reasons. First, the petitioner failed to raise this claim in response to the Notice of 
Intent to Deny, and submits it for the first time on appeal. A petitioner cannot offer a new position to the 
beneficiary, or materially change a position's title, its level of authority within the organizational 
hierarchy, or the associated job responsibilities on appeal. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
SRC 03 149 52360 
Page 4 
Regulations at 8 C.F.R. 3 103.3(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. 
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. 
ORDER: The appeal is summarily dismissed. 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. 
See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Even if the petitioner had originally 
claimed that the beneficiary was managing an essential function of the organization, the record before the 
director contains no evidence to permit an evaluation of the beneficiary's eligibility in such a category. 
Second, the petitioner fails to submit evidence that sufficiently establishes that the beneficiary is 
employed in a managerial capacity. The petitioner claims that the beneficiary supervises a subordinate 
staff, but no evidence has been submitted to establish that these individuals occupy positions that are 
professional, supervisory, or managerial in nature, as required by section 101(a)(44)(A)(ii) of the Act.