dismissed EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 2, 2023 In Re : 27887058 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a provider of financial consulting services, seeks to employ the Beneficiary as an 
accountant. The company requests his classification under the third-preference, immigrant visa 
category for professionals . See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 
8 U.S.C. § 1153(b)(3)(A)(ii). 
The Director of the Texas Service Center initially approved the petition, but subsequently revoked the 
approval, concluding that the Petitioner and Beneficiary concealed family relationships between the 
Beneficiary and the company's principals and that the Petitioner failed to demonstrate the availability 
of the offered position to U.S . workers . The Director also dismissed the following motion to reopen, 
concluding that the Petitioner did not demonstrate that its delay in filing the motion was reasonable 
and beyond its control. We dismissed the subsequent appeal, then later dismissed the Petitioner ' s 
motions to reconsider and reopen the proceeding. The matter is now before us again on motions to 
reopen and reconsider our most recent decision. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; MatterofChawathe, 25 l&N 
Dec . 369, 375 (AAO 2010) . Upon review, we will dismiss both motions . 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was 1) based on an incorrect 
application of law or policy , and 2) incorrect based on the evidence in the record at the time of the 
decision. 8 C.F.R. § 103.5(a)(3). The scope of any motion is limited to review of"the prior decision." 
See 8 C.F.R. § 103.5(a)(l)(i) . As noted , we dismissed the prior combined motions because the motion 
to reopen did not present a new fact, supported by documentary evidence , and the motion to reconsider 
did not identify a law or policy that we incorrectly applied to the evidence in the record. 
Thus, our analysis for these combined motions is limited to the following: ( 1) whether the Petitioner 
establishes that the dismissal of the previous combined motions was based on an incorrect application 
of law or policy; or (2) whether the Petitioner presents a new fact, supported by evidence , that shows 
proper cause to reopen our decision on the previous combined motions . We may grant motions that 
satisfy these requirements and demonstrate eligibility for the requested benefit. See Matter ofCoelho, 
20 I&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the 
outcome). 
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." See INS v. Abudu, 485 U.S. at 110. 
As noted above, the Director revoked the previous approval of this petition. In our October 2021 
decision on appeal, we concluded that USCIS provided adequate notification of that revocation, and 
that the Petitioner had not demonstrated that its delay in filing a motion to reopen that revocation 
decision, filed more than 15 months later, was reasonable and beyond its control. In August 2022, we 
dismissed the Petitioner's combined motions as they did meet the applicable requirements. 8 C.F.R. 
§ 103.5(a)(4). For the sake of brevity, we incorporate our previous analysis of the record and will 
repeat only certain facts and evidence as necessary to address the Petitioner's assertions on motion to 
reconsider and new evidence submitted in support of his motion to reopen. 
I. MOTION TO RECONSIDER 
In its previous motion to reconsider, the Petitioner asserted the USCIS resources about updating 
addresses that we 
referred to in our appellate decision were ambiguous as to whether they also apply 
to instances where a petition or application has already been approved, and that it was therefore 
unaware of any requirement and not obligated to provide a new address after approval of this petition. 
In dismissing the motions, we reiterated that all of the USCIS resources emphasized the importance 
of updating addresses, with the DHS Ombudsman website stressing that "It is the sole responsibility 
of the applicant/petitioner to ensure USCIS has the correct address information on file." We concluded 
that the Petitioner had not shown that our previous decision that the untimely filing of its initial motion 
to reopen was not reasonable or beyond its control was incorrect. 8 C.F.R. § 103.5(a)(l). 
We further determined that the regulation at 8 C.F.R. § 103.5(a)(l) does not require, as the Petitioner 
suggested on motion, that USCIS consider whether the Petitioner would have timely a filed motion to 
reopen the revocation of its petition if it would have received the notice. 
Finally, the Petitioner argued that since USCIS is one agency, it was reasonable for the Petitioner to 
believe that the new address it used in its nonimmigrant visa petitions would be shared and applied to 
its immigrant visa petition as well. But as reiterated in our previous decision, each benefit request 
creates its own, separate record of proceeding, and officers are expected to consider that record only 
when adjudicating a petition or application. See I USCIS Policy Manual E.2. 
We dismissed the previous motion to reconsider, concluding the Petitioner had not established that 
our most recent decision was based upon an incorrect application of law or policy, or that it was 
incorrect based upon the record at the time the decision was made. 
Turning to the instant motion to reconsider, the current brief does not directly address the conclusions 
from our August 2022 decision to dismiss the combined motions. In support of the instant motions, 
the Petitioner does not contest our previous conclusion that USCIS followed its own regulatory 
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procedures in revoking the petition. Instead, it submits a brief contending that in following these 
procedures USCIS "violated [the Petitioner's] constitutionally protected due process rights." 
However, we discussed the applicability of its due process rights under the Fifth Amendment of the 
United States Constitution in our appellate decision, not in our most recent decision dismissing the 
combined motions. 
In our appellate decision we observed that the Petitioner did not demonstrate that it had any additional 
expectations of due process beyond USCIS' regulatory requirements, noting most courts have found 
that noncitizens lack protectable, constitutional interests in immigrant visa petitions. See Mantena v. 
Johnson, 809 F.3d 721, 736 (2d Cir. 2015) (noting "the doubts cast by many courts on the liberty and 
property interests implicated in an immigrant visa"). On appeal, we determined that the record 
demonstrated that USCIS provided the Petitioner with sufficient due process protections through 
following our regulatory notice procedures. Since the Petitioner did not challenge our conclusions in 
this regard in its previous motions, we consider this issue waived. Cf Matter ofR-A-M-, 25 I&N Dec. 
657, 658 n.2 (BIA 2012), (stating that when a filing party fails to appeal an issue addressed in an 
adverse decision, that issue is waived). 
In short, we did not address the issue of the Petitioner's constitutional "due process rights" in our 
decision dismissing the previous motions, because the Petitioner did not raise this issue within its 
motions. 1 The purpose of a motion to reconsider is to show error in the most recent prior decision. 
The Petitioner's latest motion to reconsider does not meet this standard. On motion to reconsider, the 
Petitioner has not established that our previous decision was based on an incorrect application of law 
or policy at the time we issued our decision. Therefore, the motion will be dismissed. 8 C.F.R. 
§ 103.5(a)(4). 
II. MOTION TO REOPEN 
As discussed above, a motion to reopen must state new facts and be supported by documentary 
evidence. 8 C.F.R. § 103.5(a)(2). Resubmitting previously provided evidence or reasserting 
previously stated facts do not meet the requirements of a motion to reopen. The new facts must also 
be relevant to the grounds of the unfavorable decision, which in this case is the Petitioner's previous 
combined motions, which we dismissed. 
In our previous decision dismissing the Petitioner's motion to reopen we first concluded that while it 
provided additional evidence on motion, this new information was not material to the issue of whether 
USCIS provided adequate notice of the revocation to the Petitioner. Next, we observed that the 
Petitioner's brief on motion reiterated arguments made in its appeal that the Petitioner's delay in filing 
its initial motion to reopen was reasonable since it filed the motion as soon as it learned of the 
revocation. As these claims had been previously presented, we dismissed the motion because to 
1 Tfwe had, we would have likely concluded that there are no due process rights implicated in the adjudication of a benefits 
application or petition. See Lyng v. Payne, 476 U.S. 926,942 (1986) (holding that "[ w ]e have never held that applicants 
for benefits, as distinct from those already receiving them, have legitimate claim of entitlement protected by Due Process 
Clause of Fifth or Fourteenth Amendment"); see also Azizi v. Thombwgh, 908 F.2d 1130, 1134 (2d Cir. 1990) (explaining 
that the Fifth Amendment protects against the deprivation without due process of property rights granted to noncitizens; 
however, petitioners do not have an inherent property right in an immigrant visa). 
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reopen because it did not state new facts, and therefore failed to meet the requirements at 
8 C.F.R. § 103.5(a)(2). 
In the instant motion to reopen, the Petitioner presents arguments and references a district court 
decision in support of its assertion that USCIS violated its "due process rights" in following its own 
regulatory procedures in revoking this petition. 2 We incorporate our foregoing discussion above, in 
which we determine that since the Petitioner did not challenge our conclusions in this regard in its 
previous motions, we consider the issue waived. Cf Matter ofR-A-M-, 25 I&N Dec. at 657. 
As discussed, we will only consider new evidence to the extent that it pertains to our latest decision 
dismissing the motion to reopen. Here, the Petitioner has not provided new facts to establish that we 
erred in dismissing its prior motions. Because the Petitioner has not established new facts that would 
warrant the reopening of the proceeding, we have no basis to reopen our prior decision. While the 
Petitioner requests that we "consider the entire record in these proceedings while adjudicating the 
instant [motions]," we will not re-adjudicate the application anew and, therefore the underlying 
petition remains denied. The motion to reopen will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
FURTHER ORDER: The motion to reopen is dismissed. 
2 We note that in contrast to the broad precedential authority of the case law of a United States circuit court, we are not 
bound to follow the published decision of a United States district court in cases arising within the same district. See Matter 
ofK-S-,20l&NDec. 715, 719-20(BIA 1993). 
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