dismissed H-1B Case: Computer Science

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U.S. DepartJnent of Homeland security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
PU~LJC~COPY
FILE: SRC 02 268 50798
SEP 11 2001
Office: TEXAS SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 02 268 50798
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the Administrative
Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO on motion to
reconsider. The motion will bedismissed.
The petitioner is a custom home builder, and seeks to employ the beneficiary as a computer specialist. It
endeavors to classify him 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)(l5)(H)(i)(b). The
director denied the petition on the ground that the proffered position is not a specialty occupation. The AAO
affirmed the director'sfindings.
A motion to reconsider must: (I) state the reasons for reconsideration and be supported by any pertinent
precedent decisions to establish that the decision was based on an incorrect application of law or CIS policy;
and (2) establish that the decision was incorrect based on the evidence of record at the time of the initial
decision. 8 C.F.R. § 103.5(a)(3).
The petitioner has not provided pertinent precedent decisions to establish that the prior decision was based on
an incorrect application of law or CIS policy. On motion, the petitioner references the Department of Labor's
Occupational Outlook Handbook (Handbook) and provides copies of Internet job advertisements for
computer support specialists and related positions. The advertisements are of little evidentiary value,
however, as they are not from organizations similar in nature and scope to that of the petitioner. Thus, the
advertisements do not establish that a degree in a specific specialty is required in parallel positions among
similar organizations. Further, the Handbook notes that there is no universally accepted way to prepare for a
job as a computer support specialist, but that many employers prefer to hire people with some formal college
education. Some jobs requirea bachelor's degree, while others require only an associate's degree. The duties
of the proffered position were described by the petitioner as follows: updating, repairing and testing
computer systems; resolving computer-related problems in Auto-CAD; using Auto-CAD to design
construction based on customer requirements; and creating designated software products to be used by the
petitioner using Auto-CAD. As described by the petitioner, the duties are not anymore unique, specialized or
complex than those routinely performed by computer support specialists in the industry with less than a
baccalaureate level education. The petitioner has failed to establish that the prior decision of the AAO was
incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).
The record reflects, and the prior decision correctly states, that the proffered position does not qualify as a
specialty occupation under 8 C.F.R. § 2l4.2(h)(4)(iii)(A).
A motion that does not meet applicablerequirementsshall be dismissed. 8 C.F.R. § 103.5(a)(4). In visa petition
proceedings, the burden of proving eligibility remains entirely with the petitioner.. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has not metthat burden.
ORDER: The motion is dismissed. The previous decisionof the AAO dated November 9,2004, is affirmed.
The petition is denied.