dismissed H-1B Case: Construction

(b)(6)
DATE: JUl 0 8 2015 
IN RE : 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 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(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.P.R. § 103.5. 
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. 
6senberg 
ief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The petitioner appealed 
the denial to the Administrative Appeals Office (AAO) and, we dismissed the appeal. The matter is 
again before us on a combined motion to reopen and motion to reconsider. The combined motion 
will be dismissed. 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a construction 
business that was established in . In order to employ the beneficiary in what it designates a project 
manager position, the petitioner seeks to classify him as a nonimmigrant worker in an H-lB specialty 
occupation pursuant to section 101(a)(15)(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, concluding that the petitioner did not establish that the proffered 
position qualifies as a specialty occupation in accordance with the applicable statutory and regulatory 
provisions. The petitioner submitted an appeal of the Director's decision to us. We reviewed the record 
of proceeding and determined it did not contain sufficient evidence to establish that the petitioner would 
employ the beneficiary in a specialty occupation position. We provided a comprehensive analysis of 
the Director's decision and dismissed the appeal. 
I. MOTION REQUIREMENTS 
For the reasons discussed below, we conclude that this combined motion will be dismissed because the 
motion does not merit either reopening or reconsideration. 
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 (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 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 .... 
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This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states:1 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence that establish eligibility at the time the 
underlying petition or application was filed. 
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. 
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 and must establish that the decision was 
based upon the incorrect application of law or policy, and that the decision was incorrect 
based upon the evidence of record at the time of the 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, 
1 The regulation at 8 C.F.R. § 103.2(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 1 to 
the contrary, such instructions are incorporated into the regulations requiring its submission. 
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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 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 AND ANALYSIS 
The submission constituting the combined motion 
consists of the following: (1) the Notice of Appeal or 
Motion (Form I-290B); (2) a brief submitted by counsel; (3) a letter from the petitioner; (4) H-IB 
related documents for a different employer on behalf of the beneficiary; and ( 5) a copy of the 
petitioner's previously submitted H -1 B petition, Labor Condition Application, and supporting 
documents. 
A. Dismissal of the Motion to Reopen 
Upon review, we find that the petitioner did not provide any new facts in this motion. Further, we 
observe that all documents submitted in support of this motion were previously available. As such, the 
petitioner has not established that the evidence submitted on this motion would change the outcome of 
this case if the proceeding were reopened. 
"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the 
interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS v. 
Abudu, 485 U.S. 94, 107 (1988). Motions for the reopening of immigration proceedings are disfavored 
for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly 
discovered evidence. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94 
(1988)). A party seeking to reopen a proceeding bears a "heavy burden" of proof. INS v. Abudu, 485 
U.S. at 110. With the current motion, the petitioner has not met that burden. 
B. Dismissal of the 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 a decision on an application or 
petition must, when filed, 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. § 103.5(a)(3) (detailing the requirements for a motion to 
reconsider). 
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On motion, the petitioner asserts that we erred in finding that the proffered position does not qualify as a 
specialty occupation? The documents constituting this motion do not, however, 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. 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. 
C. Judicial Proceedings 
We further note that the submission does not meet the applicable requirements for motions. More 
specifically, the combined motion does not contain a statement pertinent to whether the validity of 
the unfavorable decision has been or is the subject of any judicial proceeding, which is required by 
8 C.F.R. §103.5(a)(l)(iii)(C). Thus, combined motion must also be dismissed for this reason. 
III. CONCLUSION 
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 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 dismissed, 
the proceedings will not be reopened or reconsidered, and our previous decision will not be disturbed. 
ORDER: The combined motion is dismissed. 
2 The petitioner noted that USCIS approved other petitions that had been previously filed on behalf of the 
beneficiary. If any of the previous nonimmigrant petitions were approved based on the same unsupported 
assertions that are contained in the current record, they would constitute material and gross error on the part of 
the Director. We are not required to approve petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology 
International, 19 l&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCIS or any 
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. We are not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001).