dismissed H-1B Case: Business Management

MATTER OF B-H-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY4,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an electrical contractor, seeks to temporarily employ the Beneficiary as a .. business 
manager" under the H-lB nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) § 101(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-lB 
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, California Service Center, denied the petition. The Petitioner appealed the deniaL 
which we dismissed on the basis that the Petitioner had not established that the proffered position 
qualifies as a specialty occupation. 
The matter is now before us on a motion to reconsider. In its motion, the Petitioner asserts that our 
decision was not in accordance with the law. 
We will deny the 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 USCIS 
officer's authority to reopen the proceeding or reconsider the decision to instances where ··proper 
cause" has been sho\\-n 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." 
Matter of B-H-E-. Inc. 
B. 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 )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)J establish 
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 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. 1 
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 ne\V facts. ('om pare 
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 1vfatter (~l 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 afTectcd 
party. Matter (~lO-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 of previous 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 motion to reconsider will be denied. 
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." 
2 
Matter of B-H-E-, Inc. 
The Petitioner's motion does not 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. S'ee 
8 C.P.R. § 103.5(a)(3) (requirements for a motion to reconsider); Instructions for Motions to 
Reconsider at Part 4 of the Form I-290B. 
Here, the Petitioner's stated reasons for reconsideration are insufficient to establish that our decision 
was incorrect. First the Petitioner asserts that the proffered position meets the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(l). The Petitioner relies upon the Occupational Outlook Handbook (Handbook) 
chapter on Sales Managers for the proposition that "'the possession of a bachelor[']s degree is a 
qualification for being a general business manager and establishes our position that a general business 
manager qualifies as a specialty occupation." The Petitioner also cites to the Occupational Infom1ation 
Network (O*NET) Summary Report for Sales Managers for the proposition that ··most occupations 
require a four year bachelor's degree ... therefore it is l] probative of the proffered position's being a 
specialty occupation." The Petitioner contends that we erred by failing to draw proper conclusions from 
the relevant parts of the Handbook and O*NET. 
We find the Petitioner's assertions unpersuasive. As acknowledged by the Petitioner. both the 
Handbook and O*NET indicate that sales managers generally require a bachelor's degree. However, 
the requirement of an otherwise unspecified, general bachelor's degree - without more - is insufficient 
to establish a position as a specialty occupation. 
As we stated in our November 30, 2015, decision, all of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) 
must logically be read together with section 214(i)(l) of the Act and 8 C.P.R.§ 214.2(h)(4)(ii) as to 
require not only a bachelor's or higher degree, but a bachelor's or higher degree in a spec(!ic 
!>pecialty, or its equivalent. The regulatory language in 8 C.P.R. § 214.2(h)(4)(iii)(A) must be 
construed in harmony with the thrust of section 214(i)(l) ofthe Act and 8 C.P.R.§ 214.2(h)(4)(ii), 
both of which define the term "'specialty occupation" as requiring the attainment of a bachelor's or 
higher degree in a "'specific specialty" or its equivalent.2 SeeK Mart Corp. v. Cartier. Inc .. 486 U.S. 
281. 291 (1988) (holding that construction of language which takes into account the design of the 
statute as a whole is preferred); see also COlT Independence Joint Venture v. Fed. Sav. and Loan 
Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 21 I&N Dec. 503 (BIA 1996). The criterion stated 
2 The statute contains the term ·'a bachelor's or higher degree in the specific specialty (or its equivalent)" while the 
regulation contains the term "a bachelor's degree or higher in a specific specialty, or its equivalent (emphasis added)." 
Whether read with the statutory "the" or the regulatory "a,'' both readings denote a singular "specialty." Section 
214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
positions from qualifYing as specialty occupations if they permit, as a minimum entry requirement. degrees in more than 
one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
3 
Matter of B-H-E-, Inc. 
in 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) should therefore logically be read as requiring a bachelor's or 
higher degree in a spectfic specialty, or its equivalent, as the normal minimum entry requirement for 
the particular position. Neither the Handbook nor O*NET indicate that a bachelor's degree in any 
particular field(s) is normally required for the occupation. 
The Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012) to 
support the proposition that ··the prospective employee's knowledge is what is relevant and not the 
title of the degree." The Petitioner asserts that ''the Judge [in Residential] stated that the fact that the 
beneficiary completed a specialized course of study related is sufficient for finding that a specialty 
occupation exists." The Petitioner thus asserts that ''[sJimilarly, in our case, the [Beneficiary] 
completed a specialized course of study directly related to the proffered position, which qualifies 
him for the HI B specialty occupation.'' The Petitioner also cites to Raj and Co. v. USCL\', 85 F. 
Supp. 3d 1241, 1246 (W.D. Wash. 2015) to support similar propositions. 
However, the Petitioner appears to have misinterpreted Residential and Raj and confused the issue of 
a beneficiary's qualifications with the issue of a proffered position's qualifications as a specialty 
occupation. The test to establish a position as a specialty occupation is not the skill set or education 
of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. Thus. 
whether or not the Beneficiary in this case has completed a specialized course of study directly 
related to the proffered position is irrelevant to the issue of whether the proffered position qualities 
as a specialty occupation, i.e., whether the duties of the proffered position require the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent. Section 214(i)(l) of the Act: 8 C.F.R. 
§ 214.2(h)(4)(ii). Moreover, the Petitioner has not overcome our previous finding that there is 
insufficient evidence to establish that the facts of the instant petition are analogous to those in 
Residential and Raj, and that we are not bound to follow the published decision of a United States 
district court.3 See A1atter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). 
The Petitioner also contends that a Business Manager position meets the definition of "specialty 
occupation" as defined at 8 C.F.R. § 214.2(h)(4)(ii), as it is "obviously'' one of the "business 
specialties" included in that definition. The Petitioner states that "fa] Business manager is a job 
type that Congress contemplated when it created the H-IB visa category." 
The Petitioner has not supported its assertion with citations to precedent decisions. legislative 
history, or other legal authority. Without citations to legal authority or other persuasive sources. we 
cannot find that a Business Manager position, particularly a "general business manager" position as 
the Petitioner characterizes the proffered position. constitutes a business specialty. Instead. we tind 
3 In particular, these cases apply to the "Market Research Analysts'' occupational classification, as opposed to the ··sales 
Managers" classification chosen here. While the Petitioner claims that the proffered duties include some similar duties 
to a market research analyst, the fact remains that the proffered position has been classified under the "Sales Managers" 
occupational classification, and thus, the analysis specifically regarding the ''Market Research Analysts" occupational 
classification found in Residential and Raj is inapplicable here. 
4 
(b)(6)
Matter of B-H-E-. Inc. 
that a general Business Manager position like the one proffered here is a position involving general 
business duties, and is outside the scope of the definition of ··specialty occupation·· at 8 C.F.R. 
§ 214.2(h)(4)(ii). 
With respect to the first alternative prong under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), the 
Petitioner resubmits the same job announcements that we previously found to be insunicient. The 
Petitioner asserts that these job announcements establish eligibility under this criterion because "[a]ll of 
the above job offers with similar job duties to our case, all require a bachelor[']s degree:· However, as 
explained above and in our previous decision, the requirement of a general bachelor's degree or a 
degree with a generalized title such as business administration, without further specification. does 
not establish a position as a specialty occupation. (f Matter <~{Michael Hertz Assoc.\' .. 19 I&N Dec. 
558, 560 (Comm'r 1988); Royal Siam Corp. v. Cherto.ff; 484 F.3d 139, 147 (1st Cir. 2007). The 
Petitioner has not overcome our finding that these advertisements do not establish a requirement of a 
bachelor's or higher degree in a spec(fic .\pecialty, or its equivalent. 
Under the second alternative prong under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). the 
Petitioner asserts that we failed to properly consider the complexity of the proffered job duties. More 
specifically, the Petitioner states that the Beneficiary ""has been providing specialized services that 
fall within the scope of duties that are characteristic for various fields within the business 
profession.'' The Petitioner further states that the Beneficiary's role is "very complex" because of 
his responsibility for "various areas of the company's accounting-marketing, business development, 
sales and human resources.'' However. these duties in "various fields within the business 
profession" support the notion that the position is a general business manager position. not a 
specialty occupation requiring a bachelor's or higher degree in a .\pec(fic .\]Jecialty. or its equivalent. 
C.'f Matter of Ling , 13 I&N Dec. 35, 36 (Reg' l Comm'r 1968) (explaining that '·'[b]usiness 
administration· is a broad field, a field which contains various occupations and/or professions , all of 
which are related to the world of business but each requiring a different academic preparation and 
experience peculiar to its needs''). 
The Petitioner asserts that we erroneously ·'discredited" the opinion letter from and his 
·'years of experience and educational background." However. the Petitioner also acknowledges that 
"opinion is based on personal experience and observations of the industry. not empirical 
experience or research performed at the Petitioner's site: ' The Petitioner has therefore not established 
how possessed an adequate level of factual foundation to support his opinion about the 
proffered position, notwithstanding his general knowledge about business-related professions. 
The Petitioner also asserts that we "summarily discrcdit[ed)" the opinion letter from the Beneficiary's 
business associate. The Petitioner has not established how this letter 
constitutes probative evidence that 
the proffered position requires a bachelor's or higher degree in a spec(fic specialty, or its equivalent. 
This letter states, in pertinent part, that ·'it is clear [the Beneficiary's] ability to provide vision is 
somehow tied to his educational background." Merely indicating that the Beneficiary's educational 
background is "somehow tied" or beneficial to the performance of the proftered duties, without 
more, is insufficient to establish that the proffered duties can only be perf01med by an individual 
with a specific degree. 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). Moreover, the author has not specifically 
5 
Matter of B-H-E-. Inc. 
identified the Beneficiary's educational background (or his own), thus leading us to further question 
the probative value of this letter. 
Under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). the Petitioner claims we erred by failing to 
consider the Beneficiary's prior H-1B status. However. the Petitioner has not adequately addressed our 
concerns regarding the lack of evidence about anyone else who the Petitioner may have previously 
employed in the proffered position since the Petitioner commenced operations in 2005. While we 
recognize that this is an extension petition, we also pointed out that the Beneficiary has only been 
employed with the Petitioner since 2012. 
Moreover, the mere fact that the Beneficiary was previously granted H -1 B status does not establish that 
the Petitioner '·normally'' requires a specific degree (or its equivalent). or that the performance of the 
proflered duties necessitates such a degree or its equivalent. As we stated in our previous decision. if 
the proffered position does not actually require such a specialty degree (or its equivalent) to perform 
its duties, the occupation would not meet the statutory or regulatory definition of a specialty 
occupation regardless ofthe Petitioner's imposed degree requirement. 4 See section 214(i)(l) of the 
Act; 8 C.F .R. § 214.2(h)( 4 )(ii) (defining the term .. specialty occupation''). 
Under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(.,t), the Petitioner again asserts that we failed to 
properly consider all of the proffered job duties. The Petitioner submits the same chart listing each job 
duty, percentage of time, level of responsibility. number of hours per week, and minimum educational 
training and experience. However. the Petitioner has not provided additional explanations and 
information about each job duty to overcome our prior finding that these job duties were not sufficiently 
distinguished from other duties that can be performed by persons without at least a bachelor's degree in 
a specific specialty. or its equivalent. 
Finally, the Petitioner disagrees with our determination that the Level I, entry-level, wage rate selected 
here is indicative that the proffered position is not a specialty occupation. In particular. the Petitioner 
claims that based on the position's Job Zone 4 designation, '·[a]nyone meeting this requirement 
bachelor's plus 4 years of experience, should be classified at IevelL" 
As we explained in our previous decision, a position's Job Zone designation, or its SVP rating. is not 
probative of a position being a specialty occupation because it does not describe whether the requisite 
degree (if any) must be in any specific field(s). Moreover, a Level I, entry-leveL wage rate is not 
consistent with the Petitioner's claim that the position is particularly complex or specialized 
compared to other positions within the same occupation, which do not normally require a bachelor's 
4 A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its burden to provide 
sufficient documentation to establish current eligibility for the benefit sought. Temporary Alien Workers Seeking 
Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606. 2,612 (Jan. 26. 1990) (to be codified at 8 
C.F.R. pt. 214). A prior approval also does not preclude USCIS from denying an extension of an original visa petition 
based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x. 556 (5th 
Cir. 2004). 
6 
Matter of B-H-E-, Inc. 
degree in a specific specialty. or its equivalent. Instead, the position's Level I wage rate indicates that 
the proffered position is a low-level position compared to other positions within the same 
occupation, and thus. would not reasonably have educational requirements surpassing those 
normally required for the occupation (i.e .. a general bachelor's degree).5 Contrary to the Petitioner's 
assertions, the Department of Labor's PrevailinK Wage Determination Policy Guidance clarifies that 
a Level I wage rate is "assigned to job offers for beginning level employees'' while a Level II wage 
rate is appropriate when the '·requirement for years of education and/or experience fis similar to that] 
generally required as described in the O*NET Job Zones.'' Id. 
The fundamental deficiency in this case is that the Petitioner has not established that the proffered 
position requires a minimum of a bachelor's degree in a spec(fic specialty. or its equivalent. A 
requirement of a general bachelor's degree. \Vithout more, is insufficient. OveralL the Petitioner has not 
established how our November 30. 2015, decision was incorrect in concluding that the proffered 
position does not meet any criterion of the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 AND ORDER 
The motion does not meet the requirements for a motion to reconsider. The motion will be denied. 
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 motion to reconsider will be denied. the proceedings will not be 
reconsidered, and our previous decision will not be disturbed. 
ORDER: The motion to reconsider is denied. 
Cite as Matter ofB-H-E-. Inc., ID# 16869 (AAO May 4, 2016) 
5 For additional information, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009 .pdf.