dismissed EB-3 Case: Culinary

U.S. Citizenship 
and Immigration 
Services 
In Re : 19939015 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB . 13, 2023 
The Petitioner , a restaurant , seeks to employ the Beneficiary as a head cook. It requests classification 
of the Beneficiary as a skilled worker under the third preference immigrant classification . Immigration 
and Nationality Act (the Act) section 203(b )(3)(A)(i) , 8 U.S.C. § 1153(b )(3)(A)(i) . This employment­
based immigrant classification allows a U.S. employer to sponsor a noncitizen for lawful permanent 
resident status to work in a position that requires at least two years of training or experience. 
The Director of the Texas Service Center revoked the approval of the petition , concluding that the 
record did not establish that the Beneficiary met the minimum work experience requirement stated on 
the labor certification . The Director further determined that the Petitioner and Beneficiary had 
willfully misrepresented material facts regarding the Beneficiary 's work experience . The Petitioner 
subsequently filed a combined motion to reopen and motion to reconsider. The Director dismis sed 
the motions concluding that the Petitioner 's submission did not meet the applicable regulatory 
requirements at 8 C.F.R. § 103.5(a)(2) or (3). The matter is now before us on appeal. 8 C.F.R. § 
103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawath e, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christo 's, Inc., 26 I&N Dec . 53 7, 53 7 n .2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
Our review on appeal is generally limited to the basis for the immediate prior decision . Accordingly , 
the sole issue before us is whether the Petitioner has established that the Director improperly dismissed 
its combined motions to reopen and reconsider. 
A motion to reopen is based on factual grounds and must state the new facts to be provided in the 
reopened proceeding and be supported by affidavits or other documentary evidence . 8 C .F.R. 
§ 103.5(a)(2). A motion to reconsider must (1) state the reasons for reconsideration and establish that 
the decision was based on an incorrect application oflaw or U.S. Citizenship and Immigration Services 
(USCIS) policy , and (2) demonstrate that the decision was incorrect based on the evidence in the 
record at the time of the decision . 8 C.F.R. § 103.5(a)(3) . 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits USeIS' authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. A motion that does not meet the 
applicable requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). 
The Director dismissed the Petitioner's combined motions after determining that its filing did not meet 
the regulatory requirements for a motion to reopen or a motion to reconsider. Specifically, the Director 
concluded that the Petitioner did not state new facts to warrant reopening, did not state the reasons for 
reconsideration, and did not establish that the revocation decision was based on an incorrect 
application of law or users policy. 
On appeal, the Petitioner submits a cover letter in which it generally contests the Director's revocation 
decision, suggesting that the previously submitted evidence was sufficient to establish the Beneficiary 
had the work experience to satisfy the labor certification requirements. Specifically, the Petitioner 
states that it is enclosing copies of previously submitted letters from the Beneficiary's co-workers 
which "confirm the beneficiary ... was working as a chef for about 4 years at I I restaurant 
in Korea," as stated on the labor certification. The Petitioner's letter in support of the appeal mentions 
the Director's dismissal of its combined motions only in passing. It does not address or contest the 
stated reasons for dismissal of the motions. 
However, as noted above, the Petitioner did not appeal the revocation decision itself, but rather the 
Director's latest unfavorable decision, in which the Director concluded that the Petitioner's combined 
motions did not meet applicable filing requirements at 8 e.F.R. § 103.5(a)(2) or (3). The merits of the 
revocation decision, and of the underlying petition, are not before us. 
Further, the record supports the Director's decision to dismiss the combined motions. The record reflects 
that the motion filing consisted of a Form I-290B; a cover letter that was nearly identical to the letter 
submitted in support of this appeal; a copy of the Director's revocation decision; copies of two letters 
from the Beneficiary's claimed former co-workers that were previously submitted in response to the 
NOIR and already considered by the Director; and a statement from the Beneficiary dated June 25, 2020. 
While the Beneficiary's statement post-dated the revocation decision, it was very similar in content to a 
statement she provided in response to the NOrR in 2018, which was already considered by the Director; 
it did not provide new facts to warrant reopening. Nor did the Petitioner allege that the revocation 
decision was based on an incorrect application of law or users policy or cite to any relevant statute, 
regulation, caselaw or policy guidance in support of its motion to reconsider. 
As such, the Director correctly concluded that the Petitioner did not meet the requirements for a motion 
to reopen at 8 e.F.R. § 103.5(a)(2) or the requirements of a motion to reconsider at 8 C.F.R. 
103.5(a)(3). A motion that does not meet applicable requirements must be dismissed under 8 e.F.R. 
§ 103.5(a)(4). 
For the reasons discussed, we conclude that the Petitioner has not demonstrated that the Director 
dismissed the combined motions to reopen and reconsider in error. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
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