dismissed H-1B Case: Acupuncture

MATTER OF J-E- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 24,2015 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
·PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an acupuncture clinic, seeks to temporarily· employ the Beneficiary as an 
"Acupuncturist" under the H-1B nonimmigrant classification. See Immigration and Nationality Act 
(the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service 
Center, denied the petition. The Petitioner appealed the denial to the Administrative Appeals Office 
(AAO), which we dismissed. The matter is now before us on a combined motion to reopen and 
reconsider. The combined motion will be denied. 
We dismissed the appeal, concluding that the evidence of record was inadequate to establish the 
substantive nature of the proffered position, and thus, that the proffered position qualified as a 
specialty occupation. In particular, we found that the Petitioner had not established the truthfulness 
of the statements attested to in the Forms I-129, I-290B, and supporting documentation, and that the 
evidence of record contained numerous unresolved discrepancies regarding the proffered position 
and its constituent duties. We also addressed numerous inconsistencies regarding the minimum 
educational requirements for the proffered position which further precluded the proffered position 
from being considered a specialty occupation. 
On motion, the Petitioner asserts that our decision "was incorrect because the position met at least 
one of the four criteria listed under 8 C.P.R. § 214.2(h)(4)(iii)(A)," specifically, 8 C.P.R. 
§ 214.2(h)( 4 )(iii)(A)( 4). The Petitioner reiterates some of the same job duties which were previously 
listed for the proffered position. The Petitioner also reiterates its need for a licensed acupuncturist, 
and summarizes the licensing requirements set forth by the California Acupuncture Board. The 
Petitioner then concludes that "[i]t is clear from some of the job duties ... and the requirements set 
forth by the California Acupuncture Board that an acupuncturist [meets the criterion at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A)(4)]." 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.P.R. § 103.5(a)(l)(i) includes the following statement limiting a USCIS 
officer's authority to reopen the proceeding or reconsider the decision to instances where "proper 
Matter of J-E- Inc. 
cause" has been shown for such action: "[T]he official having jurisdiction may, for proper cause 
shown, reopen the proceeding or reconsider the prior decision." 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-290B that is properly 
completed and signed, and accompanied by the correct fee), but the Petitioner must also show proper · 
cause for granting the motion. As stated in the provision at 8 C.F.R. § 103.5(a)(4), "Processing 
motions in proceedings before the Service," "[a] motion that does not meet applicable requirements 
shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F .R. § 103 .5( a)(2), "Requirements for motion to reopen," states: 
A motion to reopen must [(1)] state the new facts to be provided in the reopened 
proceeding and [(2)] be supported by affidavits or other documentary evidence. 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 
Motion· to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence demonstrating eligibility at the time the 
underlying petition ... was filed. 1 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all 
the attendant delays, the new evidence offered would likely change the result in the case." Matter of 
Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 
(lOth Cir. 2013). 
C. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 103.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be 
supported by any pertinent precedent decisions to establish that the decision was 
based on an incorrect application of law or Service policy. A motion to reconsider a 
decision on an application or petition must [(3)], [(a)] when filed, also [(b)] establish 
that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
1 The regulation at 8 C.F.R .. § I 03.2(a)(l) states in pertinent part: "Every benefit request or other document submitted to 
DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR 
chapter I to the contrary, and such instructions are incorporated into the regulations requiring its submission." 
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Matter of J-E- Inc. 
These provisions are augmented by the related instruction at Part 4 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions when filed and must establish that the 
decision was based on an incorrect application of law or policy, and that the decision 
was incorrect based on the evidence of record at the time of decision. 
A motion to reconsider contests the correctness of the prior decision based on the previous factual 
record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 
8 C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2). 
A motion to reconsider should not be used to raise a legal argument that could have been raised 
earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991) 
("Arguments for consideration on appeal should all be submitted at one time, rather than in 
piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow 
from new law or a de novo legal determination that could not have been addressed by the affected 
party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a 
similar scheme provided at 8 C.F.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 
171-72 (1st Cir. 2013). Further, the reiteration ofprevious arguments or general allegations of error 
in the prior decision will not suffice. Instead, the affected party must state the specific factual and 
legal issues raised on appeal that were decided in error or overlooked in the initial decision. See 
Matter of 0-S-G-, 24 I&N Dec. at 60. 
II. DISCUSSION 
For the reasons discussed below, the combined motion will be denied. 
In support of the motion, the Petitioner submits a brief explaining why it believes the proffered position 
qualifies as a specialty occupation. The Petitioner has not, however, presented any evidence that could 
be considered "new facts." For instance, the job duties presented on appeal were the same as some of 
those previously listed. The Petitioner also previously provided the same information regarding 
California acupuncture licensing requirements, which the Director addressed in her decision. As such, 
the Petitioner's motion does not satisfy the requirements of a motion to reopen. The motion to 
reopen will be denied. 
Nor does the Petitioner's motion satisfy the requirements of a motion to reconsider. A motion to 
reconsider must state the reasons for reconsideration and be supported by citations to pertinent 
statutes, regulations, and/or precedent decisions to establish that the decision was based on an 
incorrect application of law or USCIS policy. A motion to reconsider must also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. See 
8 C.F.R. § 1 03.5(a)(3) (requirements for a motion to reconsider); Instructions for Motions to 
Reconsider at Part 4 of the Form I-290B. 
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Matter of J-E- Inc. 
Here, the Petitioner's stated reasons for reconsideration are insufficient to establish that our decision 
was incorrect. On motion, the Petitioner asserts that the proffered position qualifies as a specialty 
occupation under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). However, the Petitioner does not 
articulate how our May 12, 2015, decision was based on an incorrect application of law or policy. 
Our May 12, 2015, decision was based upon the numerous unresolved discrepancies regarding the 
proffered position and other credibility considerations which precluded the Petitioner from 
establishing the substantive nature of the proffered position and, consequently, our decision did not 
specifically address the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)( 4), or any other criteria at 8 C.F :R. 
§ 2142(h)(4)(iii)(A). On appeal, the Petitioner specifically acknowledges that "[t]he dismissal of 
the appeal was based on some discrepancies found on the application and supporting documents 
submitted by the Petitioner," but does not further address or resolve any of these discrepancies. 
As stated above, the reiteration of previous arguments or general allegations of error will not suffice. 
See Matter of 0-S-G-, 24 I&N Dec. at 60. The Petitioner must state the specific factual and legal 
issues raised on appeal that were decided in error or overlooked in the initial decision. Id. The 
Petitioner has not done so here. 
The documents constituting this motion do not articulate how our decision on appeal misapplied any 
pertinent statutes, regulations, or precedent decisions to the evidence of record when the decision to 
dismiss the appeal was rendered. Accordingly, the Petitioner's motion to reconsider will be denied. 
III. CONCLUSION 
The combined motion does not meet the requirements for a motion to reopen or a motion to 
reconsider. Therefore, the combined motion will be denied. 
The Petitioner should note that, unless USCIS directs otherwise, the filing of a motion to reopen or 
reconsider does not stay the execution of any decision in a case or extend a previously set departure 
date. 8 C.F.R. § 103.5(a)(1)(iv). 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be denied, 
the proceedings will not be reopened or reconsidered, and our previous decision will not be 
disturbed. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of J-E- Inc., ID# 15236 (AAO Dec. 24, 2015) 
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