dismissed H-1B Case: Business Operations

(b)(6)
DATE: 
IN RE: 
JUN 1 0 2015 
Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I 01 (a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § l!Ol(a)(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENTDEC�JON 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
Administrative Appeals Office dismissed a subsequent appeal. The matter is again before us on a 
motion to reconsider. The motion will be dismissed. 
On the Form I -12 9 petition, the petitioner describes itself as 11-employee motel established in 
In order to employ the beneficiary in what it designates as business operations specialist position at a 
salary of $45,000 per year, the petitioner seeks to extend his classification as a nonimmigrant worker 
in a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1101(a)(15) (H)(i)(b). 
The director denied the petition, finding that the proffered position was not a specialty occupation, 
and we dismissed the petitioner's subsequent appeal. Upon review, we find that the petitioner's 
submissions on motion do not meet the applicable requirements for a motion to reconsider and must 
therefore be dismissed. 
I. EVIDENTIARY STANDARD 
In the exercise of our appellate review in this matter, as in all matters that come within our purview, 
we follow the preponderance of the evidence standard as specified in the controlling precedent 
decision, Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). In pertinent part, that 
decision states the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of �vidence 
that he or she is eligible for the benefit sought. 
· 
* * * 
The "preponderance of the evidence" of "truth" IS made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
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!d. 
NON-PRECEDENT DECISION 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We review these matters on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursuant to that standard, however, we find that 
the evidence in the record of proceeding does not support counsel's contentions on motion that the 
petition at issue should be reconsidered. 
Applying the preponderance of the evidence standard as stated in Matter of Chawathe, we find that 
the petitioner has not satisfied the requirements for a motion to reconsider. Accordingly, the motion 
will be dismissed. 
II. MOTION REQUIREMENTS 
We will now discuss why the submission of the motion does not satisfy the substantive requirements 
for a motion to reconsider. For the reasons discussed below, we conclude that the motion must be 
dismissed because the motion does not meet the applicable filing requirements. 
A. Overarching Requirement for Motions by a Petitioner 
The prov1Slon at 8 C.F.R. § 103. 5(a)(1)(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 shmvn 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-2908 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 Reconsider 
The regulation at 8 C.F.R. § 1 03.5(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 
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NON-PRECEDENT DECISION 
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. 
These provisions are augmented by the related instruction at Part 3 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions. 
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. 1\lfatter 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 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. 
III. DISCUSSION AND ANALYSIS 
The submission constituting the motion consists of the following: (1) the Form I-290B; (2) a six­
page brief submitted by counsel; and (3) documentary evidence, which consists of copies of the 
following: 
1. Our decision dated February 19, 2015 dismissing the petitioner's previous joint 
motion; 
2. Our decision dated February 18, 2015, dismissing the petitioner's appeal; 
3. The director's decision dated April 7, 2014, denying the petitioner's I-129 petition; 
4. The Labor Condition Application certified on September 19, 2013; and, 
5. An evaluation of the beneficiary's educational credentials. 
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 a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
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NON-PRECEDENT DECISION 
Page 5 
evidence of record at the time of the initial decision. See 8 C.P.R. § 103.5(a)(3) (detailing the 
requirements for a motion to reconsider). 
As stated earlier, the director denied the petition, finding that the proffered position was not a 
specialty occupation, and we dismissed the petitioner's subsequent appeal. On motion, counsel 
states that the beneficiary is "qualified for the position as described on the labor certification" and 
that the "job offered to the beneficiary requires the candidate to hold a Master's degree in Business 
and [sic] Administration." Counsel continues to state that the beneficiary "satisfies the requirement 
of having a single sourced Baccalaureate degree along with five (5) years of progressive work 
experience which was the basis of the I140 denial." In his brief, counsel refers to an I -140 petition 
and 8 C.F.R. § 204.5(k)(3)(i), which relates to immigrant petitions. 
However, the instant case involves an I-129 nonimmigrant petition. Therefore, counsel's basis for 
the motion is irrelevant to the instant case and therefore does not satisfy the requirements of motion 
'd 1 to recons1 er. 
Even if this were not the case, the motion to reconsider would still be dismissed because the 
documents constituting this motion do not miiculate how our decision dismissing the petitioner's appeal 
misapplied any pertinent statutes, regulations, or precedent decisions to the evidence of record when 
the decision to dismiss the appeal was rendered. The petitioner has therefore not submitted any 
document that would meet the requirements of a motion to reconsider. Accordingly the motion to 
reconsider must be dismissed. 
IV. CONCLUSION 
It should be noted for the record that, unless users directs otherwise, the filing of a motion to 
reconsider does not stay the execution of any decision in a case or extend a previously set departure 
date. 8 C.P.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 of the Act, 8 U.S.C. § 1361; Matter ojOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the motion will be dismissed and our 
previous decision will not be disturbed. 
ORDER: The motion is dismissed. 
1 A beneficiary's credentials to perform a particular job are relevant only when the job is found to qualify as a 
specialty occupation. USCIS is required to follow long-standing legal standards and determine first, \'Vhether 
the proffered position qualifies as a specialty occupation, and second, whether an alien beneficiary was 
qualified for the position at the time the nonimmigrant visa petition was filed. Cj Matter of Michael Hertz 
Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue 
after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). ln the instant case, the record of proceeding did not establish that the proffered position 
qualifies as a specialty occupation.