AAO Decision Regarding Petitioner not Establishing Employer or Agent
Relationship with H-1B Teacher.
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U.S Department of Homeland Security
20 Mass Ave. N.W. Rm.3000
Washington, D.C. 20329
U.S. Citizenship and Immigration Services
PUBLIC COPY
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FILE:
SRC 05 213 51887
Office: Texas Service Center
Date: Jan 04 2008
IN RE:Petitioner:
eneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant
to Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, §1101
(a)(15)(H)(i)(b)
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.
Robert P. Weimann, Chief
Administrative Appeals Office
DICUSSION: The nonimmigrant visa petition
was approved by the service center director. Based upon further review, the
director determined that the beneficiary was not clearly eligible for the
benefit sought. Accordingly, the director properly served the petitioner with a
Notice of Intent to Revoke (NOIR) the approval of the visa petition and her
reasons, therefore, and ultimately revoked the approval of the petition. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The
appeal will be dismissed. The petition will be denied.
The petitioner is a teacher recruitment business that seeks
to extend its authorization to employ the beneficiary as a teacher. The
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(H)(i)(b).
In the NOIR dated May 24, 2006, the director requested
additional evidence from the petitioner, including copies of the contracts
between the petitioner and the beneficiary and between the petitioner and public
school district in Georgia for whom the beneficiary would be performing
services. The director revoked the petition because the petitioner failed to
submit evidence in response to the NOIR, and because the petitioner does not
meet the definition of a U.S. employer.
On appeal, the petitioner’s new counsel submits a brief and
asserts that the director erred when she determined that no additional evidence
was provided in response to the NOIR. Counsel submits an affidavit signed by
the petitioner’s vice president on June 14, 2006, who states that, in accordance
with the attached contract, an employer-employee relationship exists between the
petitioner and the beneficiary. Counsel also submits: a teaching services
agreement, effective on May 2, 2005, between the petitioner and the DeKalb
County Board of Education; an employment offer from the petitioner to the
beneficiary; a 2005 W-2 Wage and Tax Statement identifying the petitioner as the
employer and the beneficiary as the employee; and a letter, dated June 16, 2006,
from the director for employment services of the DeKalb County School System,
stating that the beneficiary is an employee of the petitioner, not of the DeKalb
County School System.
The regulation states that the petitioner shall submit
additional evidence as the director, in his or her discretion, may deem
necessary. The purpose of the request for evidence is to elicit further
information that clarifies whether eligibility for the benefit sought has been
established, as of the time the petition is filed. See 8 C.F.R. §§
103.2(b)(8) and (12). The failure to submit requested evidence that precludes a
material line of inquiry shall be grounds for denying the petition. 8 C.F.R.
§103.2(b)(14).
Where, as here, a petitioner has been out on notice of a
deficiency in the evidence and has been given an opportunity to respond to that
deficiency, the AAO will not accept evidence offered for the first time on
appeal. See matter of Soriano, 19I&N Dec. 764 (BIA 1988); see also
Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had
wanted the submitted evidence to be considered, it should have submitted the
documents in response to the director’s request for evidence. Id.
Counsel’s assertion on appeal that additional evidence was provided in response
to the NOIR is noted. The record, however, contains no evidence, such as a
postmarked mailing receipt, in support of counsel’s assertion. Without
documentary evidence to support the claim, the assertions of counsel will not
satisfy the petitioner’s burden of proof. The unsupported assertions of counsel
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA
1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Under the circumstances,
the AAO need not and does not consider the sufficiency of the evidence submitted
on appeal. Consequently, the appeal will be adjudicated based on the record of
proceeding before the director.
Pursuant to 8 C.F.R. §214.2(h)(4)(ii), United States
employer means a person, firm, corporation, contractor, or other
association, or organization in the Untied States which:
(1)
Engages a person to work within the United States;
(2)
Has an employer- employee relationship with respect to employees
under this part, as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of any such employee; and
(3)
Has an Internal Revenue Service Tax identification number.
At the time of filing, the petitioner submitted the
following documentation:
·
A Form ETA 9035, Labor Condition Application (LCA), which identifies the
beneficiary’s work location as Ellenwood, Georgia; and
·
A Georgia Educator Certificate issued by the Georgia Professional
Standards Commission, affirming that the beneficiary has met the requirements
for the “International Exchange Interrelated Special Educ[ation] (P-12),” valid
from 07/01/02 to 06/30/05.
Upon review of the record, the petitioner has not
established that an employer-employee relationship exists between the petitioner
and the beneficiary.
Pursuant to 8 C.F.R. § 214.2(h)(4)(ii), United States
employer means a person, firm, corporation, contractor, or other
association, or organization in the Untied States which:
(1)
Engages a person to work within the United States;
(2)
Has an employer- employee relationship with respect to employees
under this part, as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of any such employee; and
(3)
Has an Internal Revenue Service Tax identification number.
To qualify as a United States employer, all three criteria
must be met. The Form I-129 indicates that the petitioner has an Internal
Revenue Service Tax Identification Number. However, despite the director’s
specific request that the petitioner provide contracts between the petitioner
and the beneficiary and between the petitioner and the public school district in
Georgia for whom the beneficiary would be performing services, the petitioner
did not respond to the director’s request. Again, failure to submit requested
evidence that precludes a material line of inquiry shall be grounds for denying
the petition. 8 C.F.R. §103.2(b)(14). Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of
proof in 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)). In view of the foregoing, the petitioner has not
demonstrated that it would have an employer-employee relationship with the
beneficiary with the authority to hire, pay, fire, supervise, or otherwise
control the work the beneficiary would perform.
The AAO also finds that the petitioner has not established
that it has met the regulatory requirements as an agent for the beneficiary.
Pursuant to 8 C.F.R. § 214.2(h)(2)(i)(F):
A United States agent may file a petition in cases
involving workers who are traditionally self-employed or workers who use agents
to arrange short-term employment on their behalf with numerous employers, and in
cases where a foreign employer authorizes the agent to act on its behalf. A
United States agent may be: the actual employer of the beneficiary, the
representative of both the employer and the beneficiary, or, a person or entity
authorized by the employer to act for, in place of, the employer as its agent.
A petition filed by a United States agent is subject to the following condition:
(1)
An agent performing the function of an employer must guarantee the
wages and other terms and conditions of employment by contractual agreement with
the beneficiary or beneficiaries of the petition. The agent/employer must also
provide an itinerary of definite employment and information on any other
services planned for the period of time requested.
(2)
A person or company in business as an agent may file the H petition
involving multiple employers as the representative of both the employers and the
beneficiary or beneficiaries if the supporting documentation includes a complete
itinerary of services or engagements. The itinerary shall specify the dates of
each service or engagement, the names and addresses of the actual employers, and
the names and addresses of the establishment, venues, or locations where the
services will be performed. In questionable cases, a contract between the
employers and the beneficiary or beneficiaries may be required. The burden is
on the agent to explain the terms and conditions of the employment and to
provide any required documentation.
(3)
A foreign employer who, through a United States agent, files a
petition for an H nonimmigrant alien is responsible for complying with all of
the employer sanctions provisions of section 274A of the Act and 8 CFR part
274a.
The AAO determines that the petitioner has not complied
with the regulatory requirements for an agent in that it has failed to submit an
itinerary of services or engagements. In a letter dated July 26, 2005, the
petitioner’s president stated, in part, that the petitioner has contracts with
several counties in Georgia to provide qualified primary and secondary school
teachers, and that it has offered the beneficiary the position of teacher.
While the petitioner may have a definite employment commitment with the
beneficiary, however, it is not relieved of its regulatory obligation to provide
an itinerary of services or engagements as the agent on an H-1B petition.
Therefore, the Petitioner has failed to establish that it
meets the regulatory requirements for an agent of an H-1B petition.
The record contains evidence that CIS has approved another
H-1B petition for the petitioner in the past. This record of proceeding does
not, however, contain all of the supporting evidence submitted to the service
center in the prior case. In the absence of all of the corroborating evidence
contained in that record of proceeding, the documents submitted by the
petitioner are not sufficient to enable the AAO to determine whether the other
H-1B petition was approved in error.
Each nonimmigrant petition 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 contained in the record
of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Although the AAO may
attempt to hypothesize as to whether the prior approval was erroneous, no such
determination may be made without the review of the original record in its
entirety. If the prior petition was approved based on evidence that was
substantially similar to the evidence contained in this record of proceeding
that is now before the AAO, however, the approval of the prior petition would
have been erroneous. CIS is not required to approve 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). Neither CIS nor any other 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).
As related in the discussion above, the petitioner has not
established that an employer-employee relationship exists between the petition
and the beneficiary. Accordingly, the AAO will not disturb the director’s
denial of the petition.
Beyond the decision of the director, the LCA filed by the
petitioner is not valid. The LCA lists the work location as Ellenwood, Georgia,
which is in Clayton County. The evidence of record indicates that the
beneficiary will work for the petitioner’s client, the DeKalb County School
System. As such, the LCA does not cover all of the geographical areas of the
proposed employment. For this additional reason, the petition may not be
approved.
An application or petition that fails to comply with the
technical requirements of the law may be denied by the AAO even if the Service
Center does not identify all of the grounds for denial in the initial decision.
See Spencer Enterprises Inc. v. United States, 229 F. Supp. 2d 1025,
1043 (E.D. Cal. 2001), aff’d. 345 F.3d 683 (9th Cir. 2003);
see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the
AAO reviews appeals on a de novo basis).
The petition will be denied and the appeal dismissed for
the above stated reasons, with each considered as an independent and alternative
basis for the decision. 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. Here, that burden has not been met.
ORDER: The appeal is dismissed.
The petition is denied.
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