dismissed EB-2 Case: Software Development

(b)(6)
DATE: MAR 2 8 2014 
INRE : Petitioner : 
Beneficiary : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~/( -fo--
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa pet1t10n The 
petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on November 14, 
2013, the AAO dismissed the appeal. The matter is now before the AAO on a motion to reopen. The 
motion will be dismissed. 
The petitioner describes itself as a computer software company. It seeks to permanently employ the 
beneficiary in the United States as a "team lead , software development. " The petitioner requests 
classification of the beneficiary as an advanced degree professional pursuant to section 203(b )(2) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
The director determined that the petitioner failed to demonstrate that the beneficiary had a single 
source degree that was equivalent to an advanced degree pursuant to Section 203(b )(2) of the 
Immigration and Nationality Act , 8 U.S.C. § 1153(b)(2). Beyond the decision of the director, 1 the 
AAO noted in its dismissal of the appeal that the petitioner failed to establish the beneficiary ' s 
qualifications for the proffered position. In its decision, the AAO noted that the petitioner did not 
provide evidence that the beneficiary's diploma is from a school that is accredited or that the 
beneficiary's degree and diploma are equivalent to a U.S. bachelor's degree in computer science or a 
related field. The AAO also noted that the record contains inconsistent information regarding the 
beneficiary's dates of employment and position with the petitioner. 
On motion, counsel submits a brief, two evaluations, a letter from the petitioner, and resubmits a 
work experience letter for the beneficiary dated March 12, 2009. 
The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that "[a] motion to reopen must state 
the new facts to be provided in the reopened proceeding and be supported by affidavits or other 
documentary evidence." Based on the plain meaning of "new," a new fact is found to be evidence that 
was not available and could not have been discovered or presented in the previous proceeding. 2 
In his brief, counsel states that page two of the evaluations submitted contain evidence that the 
and that a three-year bachelor's degree is required for admission. As noted in 
the AAO's previous decision , some post graduate programs only require a higher secondary 
certificate instead of a two or three-year bachelor 's degree. Although the evaluators both state that 
requires a three-year bachelor's degree , neither evaluation provides support for this conclusion. 
1 
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) , affd , 345 F.3d 683 (91h Cir. 2003); see also Soltan e v. DOl , 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
2The word "new" is defined as "1. having existed or been made for only a short time . .. 3. Just 
discovered, found, or learned <new evidence> .... " Webster's II New Riverside University Dictionary 
792 (1984)( emphasis in original). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Further, neither evaluator provides a source or documentary evidence indicating that was 
accredited at the time that the beneficiary received his diploma. 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'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
In his brief, counsel states that the evaluations submitted on motion make it "patently clear" that the 
beneficiary has a single-source bachelor's degree. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner•s burden of proof The 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 ofRamirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). 
On motion, the petitioner submitted a letter stating dated December 11, 2013 stating that it considers 
the beneficiary's bachelor ' s degree to be in a field related to computer science because the 
beneficiary's three-year bachelor's degree from the _ concentrated on computer 
applications. A degree in computer applications has a different emphasis than that of a computer 
science degree. Although the petitioner now states in its letter that it accepts the beneficiary's three­
year degree in computer applications as the equivalent of a bachelor's degree in computer science or 
a related field, the petitioner did not indicate that it would accept a degree in computer applications 
on the labor certification. 3 
The motion to reopen does not qualify for consideration under 8 C.F.R. § 103.5(a)(2) because, on 
motion, the petitioner does not provide new facts with supporting documentation not previously 
submitted. There is no evidence in the record indicating that the evidence submitted on motion 
could not have been submitted previously. The regulation at 8 C.F.R. § 103.5(a)(2) states, in 
pertinent part, that 
11
[ a] motion to reopen must state the new facts to be provided in the reopened 
proceeding and be supported by affidavits or other documentary evidence.
11 
· Based on the plain 
meaning of 
11
new,
11 
a new fact is found to be evidence that was not available and could not have been 
discovered or presented in the previous proceeding. In this matter, the petitioner presented no facts or 
evidence on motion that may be considered 
11
new
11 
under 8 C.F.R. § 103.5(a)(2) and that could be 
considered a proper basis for a motion to reopen. 
Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The 
regulation at 8 C.F.R . §§ 103.5(a)(1)(iii) lists the filing requirements for motions to reopen and motions 
3 In Part H, Question 7 of the Form ETA 9089, the petitioner indicated that no alternate field of 
study was accepted. Although Question 4-B indicates that a field related to computer science is 
accepted, the record does not establish that the beneficiary's three-year diploma in computer 
applications is a bachelor's or foreign equivalent degree in a field related to computer science. The 
petitioner's letter on motion also addresses the inconsistent employment information in the record. 
The AAO is satisfied with the petitioner's explanation regarding the beneficiary's inconsistent 
employment information in the record. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
to reconsider. Section 103.5(a)(1)(iii)(C) requires that motions be "[a]ccompanied by a statement about 
whether or not the validity of the unfavorable decision has been or is the subject of any judicial 
proceeding." In this matter, the motion does not contain the statement required by 8 C.F.R. § 
103.5(a)(1)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) states that a motion which does not meet 
applicable requirements must be dismissed. Therefore, because the instant motion did not meet the 
applicable filing requirements listed in 8 C.F.R. § 103.5(a)(1)(iii)(C), it must also be dismissed for this 
reason. 
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same 
reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. 
See INS v. Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party 
seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the 
current motion, the movant has not met that burden. The motion will be dismissed. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). The petitioner has not sustained that burden. 
Accordingly, the motion will be dismissed, 
the proceedings will not be reopened, and the previous decisions of the director and the AAO will not 
be disturbed. 
ORDER: The motion to reopen is dismissed. The decision of the AAO dated November 14, 2013 
is affirmed. The petition remains denied.