dismissed EB-3 Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 07, 2023 In Re: 29060642 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner seeks to employ the Beneficiary as a store manager. It requests classification of the 
Beneficiary under the third-preference, immigrant category as a skilled worker. Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment­
based category allows a U.S. business to sponsor a foreign national for lawful permanent resident 
status based on a job offer requiring at least two years of training or experience. 
After initially approving the petition, the Director of the Texas Service Center revoked the petition's 
approval. The Director found that the Petitioner did not establish that it had the continuing ability to 
pay the proffered wage in accordance with the requirements in 8 C.F.R. § 204.5(g)(2), that the 
Beneficiary possessed the required two years of experience for the offered position, and that the job 
offer was bona fide. The Director dismissed two subsequent motions to reopen and reconsider filed by 
the Beneficiary. We dismissed a subsequent appeal filed by the Beneficiary.1 
The matter is now before us on the Beneficiary's motion to reopen and reconsider. We will dismiss 
the combined motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and 
that have not been previously submitted in the proceeding, which includes the original petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). 
On motion, the Beneficiary submits a brief from counsel with copies of evidence already in the record. 
The Beneficiary states that the dismissal of the appeal was "contrary to Policy Guidelines" and 
1 We treated the Beneficiary as an affected party pursuant to Matter of V-S-G- lnc., Adopted Decision 2017-06, *14 (AAO 
Nov. 11, 2017) and accepted the appeal. 
includes an excerpt from the U.S. Citizenship and Immigration Services Policy Manual, 2 USCIS 
Policy Manual A.4(B)(l ), https://www.uscis.gov/policy-manual. 
We will dismiss the Beneficiary's motion to reopen. The Beneficiary presents no new facts and the 
motion is not supported by any documentary evidence. As such, the Beneficiary has not demonstrated 
that its filing meets the motion to reopen requirements. See 8 C.F.R. § 103.5(a)(2); see also 8 C.F.R. 
§ 103.5(a)(l )(i) (nothing that the scope of a motion is limited to "the prior decision"). 
The Beneficiary asserts that our prior decision was based on an incorrect application ofUSCIS policy. 
Specifically, the Beneficiary points to Volume 2 of the USCIS Policy Manual pertaining to 
nonimmigrant policies and procedures for granting an extension of stay, change of status, and 
extension of petition validity. 2 USCIS Policy Manual A.4(B)(l) discusses the significance of prior 
USCIS approvals and states that officers should defer to previous determinations of eligibility for 
nonimmigrant classification in "adjudicating a subsequent petition or application involving the same 
parties (for example, petitioner and beneficiary) and the same underlying facts." 
The Beneficiary asserts that based on this policy guidance, deference should be given to the Director's 
prior approval of the petition and the determination that the Petitioner and the Beneficiary 
demonstrated eligibility for the immigrant petition. He further asserts that deference should be given 
to the approval of his Form I-485 Supplement J, Request for Job Portability Under INA Section 204(j), 
dated July 31, 2018. 
The policy guidance to which the Beneficiary cites is specific to nonimmigrant petitions. This policy 
only addresses extensions of the validity of nonimmigrant petitions. It does not indicate that 
adjudicators of immigrant petitions should give deference to prior approvals of nonimmigrant 
petitions, or that the approval of a nonimmigrant petition creates a presumption of eligibility for 
immigrant classification. 
We note that USCIS records reflect that no nonimmigrant petition has ever been filed or approved on 
behalf of the Beneficiary. We further note that Form I-485 Supplement J is not a nonimmigrant 
petition.2 The Beneficiary does not cite to any policy guidance related to immigrant petitions. Nor 
does he cite to any authority that requires us to apply guidance for adjudicating nonimmigrant petitions 
to this matter. With respect to the initial approval of the immigrant petition, we do not owe deference 
to prior approvals which may have been erroneous. See Matter of Church Scientology, 19 I&N Dec. 
2 The instructions to Form T-485 Supplement J state that this form is used to: 
1. Confirm that the job offered to you in Form T-140 remains a bona fide job offer that you intend to 
accept once we approve your Form I 485 is approved; or 
2. Request job portability under INA section 204(i) to a new, full-time, permanent job offer that you 
intend to accept once your Form T-485 is approved. This new job offer must be in the same or a 
similar occupational classification as the job offered to you in Form T-140 that is the basis of your 
Form T-485. 
See l-485 J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 2040), 
https://www.uscis.gov/sites/default/files/document/forms/i-485supjinstr.pdf (accessed Dec. 5, 2023). The instructions 
state " ... the adjudication of Supplement J, for applicants requesting job portability under INA section 204(j), is primarily 
limited to a determination of whether you have a bona fide job offer from a U.S. employer that is in the same or a similar 
occupational classification as the position for which the underlying Form 1-140 was filed and approved." Id. 
2 
593, 597 (Comm'r 1988). When a petition is "filed on behalf of an alien who was never 'entitled' to 
the requested visa classification," and that petition was approved in error, the petition's approval is 
subject to revocation under section 205 of the Act. 3 
For the reasons discussed above, the Beneficiary has not shown proper cause for reopening the 
proceedings or reconsideration of our prior decision. Therefore, the Beneficiary has not established 
eligibility for the benefit sought. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
3 See also Herrera v. USC1S, 571 F.3d 881,887 (9th Cir. 2009) (explaining that, "in order for a petition to 'remain' valid, 
it must have been valid from the start"); see also Matter ofAl Wazzan, 25 l&N Dec. 359, 367 (AAO 2010) (holding that a 
beneficiary of a p01iable petition must have been "entitled" to the requested classification). 
3