dismissed H-1B Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 7S-I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 8, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a convenience store, seeks to temporarily employ the Beneficiary as an 
administrative manager under the H -1 B nonimmigrant classification for specialty occupations. S'ee 
Immigration and Nationality Act (the Act) § 10l(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not established ( 1) that the proffered position qualifies as a specialty occupation: and 
(2) that the Beneficiary is qualified to serve in a specialty occupation position in accordance with the 
applicable statutory and regulatory provisions. The Petitioner appealed the decision to us. We 
dismissed the appeaL concluding that the evidence of record was inadequate to establish that the 
duties of the proffered position comprise the duties of a specialty occupation. 1 
The matter is now before us on a combined motion to reopen and reconsider. In its motion. the 
Petitioner asserts that the proffered position is a specialty occupation and that the Beneficiary is 
qualified for the proffered position. 
We will deny the combined motion. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 103.5(a)(l)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or 
reconsider the decision to instances where '"proper cause'' has been shown for such action: .. [T]he 
1 We determined that the evidence of record does not establish that the proffered position is a specialty occupation, we 
did not include a detailed discussion on the Beneficiary's qualifications in our dismissal. 
Matter of 7S-I-, Inc. 
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, Notice of Motion or 
Appeal, 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. 2 
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:· 1~fa1ter 
o.lCoelho, 20 I&N Dec. 464, 473 (BIA 1992); see also A1aatougui 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)1 be 
supported by any pertinent precedent decisions to establish that the decision \Vas 
based on an incorrect application of law or Service policy. A motion to reconsider a 
decision on an application or petition must [(3)], [(a)l when filed, also [(b)] establish 
2 The regulation at 8 C.F.R. § 1 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." A 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a specialty 
occupation. 
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Matter of 7S-I-, Inc. 
that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
These provisions are augmented by the related instruction at Part 4 of the Form I-2908, which states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions 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 t1ow 
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 Afartinez-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 afTected 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 ofO-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 and why the Beneficiary is qualified to fill the position. 
The Petitioner has not, however. presented any evidence that could be considered ""new facts." For 
instance. the job duties and general arguments presented are virtually identical to those previously 
provided. 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. More 
specifically, while the Petitioner continues to assert that its petition should be approved, it does not 
articulate how our December 23, 2015, decision was based on an incorrect application of law or 
policy. Rather, the Petitioner reiterates many of the statements it provided in response to the 
Director's request for evidence. 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 
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Matter of7S-I-, Inc. 
state the specific factual and legal issues raised on appeal that were decided in error or overlooked in 
the initial decision. !d. 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)(l)(iv). 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe 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 of7S-I-. Inc., ID# 17394 (AAO June 8, 2016) 
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