remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
In Re : 01518759 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for an Alien Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : FEB . 23, 2021 
The Petitioner , a limited-service restaurant business , seeks to employ the Beneficiary as a food service 
worker. It requests classification for the Beneficiary as an "other worker " under the third preference 
immigrant category . Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii) , 8 U.S .C. 
§ 1153(b )(3)(A)(iii). This employment -based "EB -3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent resident status a foreign national who is capable of 
performing unskilled labor that requires less than two years of training or experience and is not of a 
temporary or seasonal nature. 
The Director of the Texas Service Center denied the petition on the ground that the Petitioner did not 
establish that it will employ the Beneficiary as a permanent full-time employee , and therefore failed 
to establish a bona fid e job offer. 
The Petitioner filed a motion to reconsider and submitted a brief. 
A motion to reconsider must establish that the decision was based on an incorrect application of law 
or U.S. Citizenship and Immigrations Services (USCIS) policy and 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 Director mistakenly treated the Petitioner's filing as a motion to reopen , instead of a motion to 
reconsider. The Director quoted the regulation at 8 C.F.R. § 103.5(a)(2) which states : 
Requirements for motion to reopen. 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 . 
The Director stated that the evidence submitted with the motion did not establish that the requirements 
of a motion to reopen had been met, and dismissed the motion on that basis. 
The Petitioner filed an appeal , along with a supplemental brief, requesting that we vacate the Director 's 
decisions and either remand the matter for further consideration by the Director or approve the petition . 
Since the Director did not properly consider the Petitioner's motion to reconsider, we will remand the 
matter for consideration of that motion in accordance with the provisions of 8 C.F.R. § 103.5(a)(3). 
The Director shall consider both the brief submitted in support of that motion and the brief submitted 
in support of the appeal. The Director shall then issue a new decision on the motion to reconsider. 
ORDER: The Director's decision on the Petitioner's motion to reconsider is withdrawn. The 
matter is remanded for the entry of a new decision consistent with the foregoing 
analysis. 
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