dismissed L-1A Case: Trade And Import

identifyingdatadeletedto
preventclearly unwarranted
invasionof personalprivacy
PUBLICCOP¥
u.s. Department of Homeland Security
20 Massachusetts A ve., N.W., Rm. A3000
Washington , DC 20 529
u.s.Citizenship
and Immigration
Services
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FILE : EAC 05 080 53692 Office : VERMONT SERVICE CENTER Date: HAR c7 I007.
INRE : Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.c. §.1101(a)(15)(L)
ON 13EHALF OF PETITIONER :
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All document s have been returned
.to the office that orig inally decided your case . Any further inquiry must be made to that office.
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~r-:.------=.--~~
Robert P. Wiemann , Chief
Administrative Appeals Office
www.uscis.gov
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EAC 05 080 53692
Page 2
DISCUSSION: The Director; Vermont Service Center, denied the petition for a nonimmigrant visa, The
petitioner filed an untimely appeal, which the director treated as a motion to reopen and reconsider. After
granting the motion, the director found that the grounds for the 'denial had not been: overcome, and
subsequently affirmed the previous decision. The matter is now before the Administrative Appeals Office.
(AAO) on appeal. The appeal will be summarily dismissed;
The petitioner states that it is engaged. in. the' trade and import of compressors and motors. It seeks to
· employ the beneficiary as a manager/supervisor pursuant to § 101(a)(15)(L) of the Immigration and
Nationality 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 would be employed in' the United States in a
managerial or executive capacity; (2) the beneficiary had been employed abroad in a primarily managerial
or executive capacity; or (3) that sufficient funds were available to launch the new enterprise in the
United States.
Counsel submitted general statements in a letter filed simultaneously with the appeal;' however, these
statements failed to adequately address the director's conclusions.' In this letter, counsel asserts that
another petition (EAC 05 800 11048) filed by the petitioner on behalf of another beneficiary was
approved forL-lA status based upon the same evidence provided in the instant matter. Counsel
concludes, therefore, that since that petition was approved based on 'identical evidence, "it stands to
reason" that the instant petition must also be approved: There are two problems with ~ounsel's argument.
First, the director provided a detailed analysis and specifically cited the deficiencies in the evidence when
rendering the decision in this matter, Counsel's statements on appeal, 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 proofin
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Second, if the other nonimmigrant ' petition were approved based on the, same unsupported and
contradictory assertions that are contained in the current record, the approval would constitute material
and gross error on the part of the director. The AAO is not required to approve applications or petitions'
where eligibility has not been demonstrated, merely because of prior approvals that may have been
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec, 593, 597 (Comm. 1988).
It would be absurd to suggest that Citizenship and Immigration Service (CIS) Of any agency must treat
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th
Cir. 1987),cert. denied, 485 U.S. 1008 (1988).
Finally, contrary to counsel's assertions, it appears thatthe position offered to the beneficiary in the other
petition (EAC 05 800 11048). was senior to. the one offered to the beneficiary in the instant matter.
·According to the petitioner's business plan submitted on appeal, it appears that the beneficiary in that
matter was offered the position of"president" of the U.S. entity, a position which outranks the position of
"manager/supervisor:" In fact, the organizational chart clearly demonstrates that the beneficiary in this
matter would be directly supervised by the beneficiary of the other petition .. Although counsel claims that
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EAC 05 080 53692
Page 3
the beneficiary in the instant matter has the same tasks as the beneficiary in the prior petition, and that the
only differences in the evidence consisted of passport andpersonal information,.the fact remains that the
positions offered to the beneficiaries do not appear to be identical in nature. Nevertheless , each petition
filing is a separate proceeding with a separate record , See 8 C.F.R . § 103.8(d). In making a
determination of statutory eligibility, CIS is limited to the information conta ined in the record of
proceeding. See 8C.F.R. § 103.2(b)(l6)(ii) . The evidence provided in this matter was insufficient to
establish that the beneficiary would be employed In the United States in a primarily managerial or
executive capacity .
On the Form I-290B received on February 21, 2006 , counsel for the petitioner clearly indicates that it
would send a brief and/or additional 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 , February 27, 2006. 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. 1 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. 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.
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 dismis sed.
I On January 26 , 2007, the AAO sent a fax to counsel. The (ax 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 su ch evidence had been submitted, within five business days . As of the date of this
decision, the AAO has received no response from counselor the petitioner.