dismissed H-1B Case: Culinary Arts

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
i&Wjing data ddekd to 
g~mt dearl: unwammtec U. S. Citizenship 
~IW~OD of '' '- "d ~rfv~~7~ and Services Immigration 
FILE: EAC 02 095 50023 Office: VERMONT SERVICE CX~TER Date: SEP 0 7 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appculs Office in you1 casc. All doculncnts li,l\c bccn ~ctlllncd to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 095 50023 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant visa petition and the Administrative 
Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO on motion to 
reopen or reconsider. The motion will be dismissed. 
The petitioner is a restaurant that seeks to employ the beneficiary as a sous chef. The petitioner endeavors to 
classify the beneficiary as a nonirnmigrant worker in a specialty occupation pursuant to section 
lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(H)(j)(b). The 
director denied the petition on the basis that the proffered position did not meet the definition of a specialty 
occupation and the beneficiary was not qualified to perform the duties of a specialty occupation. The AAO 
affirmed the director's findings. 
On motion, counsel states that the proffered position qualifies as a specialty occupation and the beneficiary is 
qualified to perform the duties of a specialty occupation. Counsel submits previously submitted supporting 
documentation in addition to copies of the petitioner's menu and a 1996 newspaper article about the 
petitioner. 
Counsel's submission of additional evidence does not satisfy either the requirements of a motion to reopen or 
a motion to reconsider. A motion to reopen must state the new facts to be proved in the reopened proceeding 
and be supported by affidavits or other documentary evidence. 8 C.F.R. 5 103.5(a)(2). A motion to reconsider 
must: (1) 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 Citizenship and Immigration 
Services (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. 5 103.5(a)(3). 
On motion, counsel submits evidence previously submitted and other evidence that could have been submitted 
previol~sly Ac diccus~ed above. a motion to reopen mr~st state the new fact< that \\/ill he pro~cn if the m,ltter is 
reopened, and must he 5uppo~ted by atf~d,~\nits 01 otlier documcnt,uj e\iclcncz. C;c~lc~~\ll:,. tl~ nc:\ f,~ts mu\t 
be material and unavailable previously, and could not have been discovered eailier in the proceetling. Scc 
8 C.F.R. 5 1003.23(b)(3). Here, no evidence in the motion contains new facts that were previously 
unavailable. The majority of the documents submitted on motion have been previously submitted. and the 
remaining evidence was not previously unavailable. Accordingly, this evidence is not "new" for the purpose 
of a motion to reopen. 
The evidence also fails to satisfy the requirements of a motion to reconsider. Although counsel asserts that 
CIS should have approved the instant petition, he does not support his assertion by any pertinent precedent 
decisions, or establish that the director misinterpreted the evidence of record. 
A motion that does not meet applicable requirements shall be dismissed. 8 C F.R. S 103 5(3)(4) In \,isn 
', petition proceedings, the burden of ploving eligibility for ~hc ben~ht so~i;llt c1iti1~1~ +I I:!, ,,,L 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not met that burden. 
ORDER: The motion is dismissed. The previous decision of the AAO, dated January 27,2004, is affirmed. The 
petition is denied.