dismissed H-1B Case: Education

MATTER OF M-A-A-F-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 21,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a preschool, seeks to temporarily employ the Beneficiary as a "group teacher" under 
the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act 
(the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(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, Vermont Service Center, denied the petition. In response to the Petitioner's appeal, 
we withdrew the Director's decision, and remanded the matter to the Director, noting that the 
Petitioner had not established that the proffered position qualifies as a specialty occupation. The 
Director subsequently denied the petition finding that the proffered position is not a specialty 
occupation. We then dismissed the appeal finding that the Petitioner had not established that the job 
offered here qualifies as a specialty occupation. 
The matter is again before us on a combined motion to reopen and reconsider. In its motion, the 
Petitioner submits additional evidence and asserts that the proffered position is a specialty 
occupation. 
Upon review, we will deny the combined motion. 
I. MOTION-IMPROPERLY FILED 
A. Legal Framework 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) states, in pertinent part, the following: 
Any motion to reconsider an action by the Service filed by an applicant or petitioner 
must be filed within 30 days of the decision that the motion seeks to reconsider. Any 
motion to reopen a proceeding before the Service filed by an applicant or petitioner, 
must be filed within 30 days of the decision that the motion seeks to reopen, except 
that failure to file before this period expires, may be excused in the discretion of the 
Matter of M-A-A-F-C-, Inc. 
Service where it is demonstrated that the delay was reasonable and was beyond the 
control of the applicant or petitioner. 
Every benefit request submitted to U.S. Citizenship & Immigration Services (USCIS) must be 
executed and filed in accordance with the form instructions and with the required fee(s). See 
8 C.F.R. § 103.2(a)(l) and (6). The date of filing is not the date of mailing, but the date when 
USCIS receives the intended motion properly completed, signed, and accompanied by the required 
fee as specified by the Form I-290B instructions. See 8 C.F.R. § 103.2(a)(7)(i) and (b)(l). 
While we must deny a motion to reconsider if it is filed untimely, the regulations permit us, in our 
discretion, to excuse the untimely filing of a motion to reopen when it is demonstrated that the delay 
was both (a) reasonable and (b) beyond the control ofthe petitioner. 8 C.F.R. § 103.5(a)(1)(i). 
B. Untimely Filing of the Motion 
We dismissed the Petitioner's appeal in a decision issued on August 7, 2015. We also properly gave 
notice to the Petitioner that any motion must be filed within 33 days of the date of the decision. The 
Form I-290B, Notice of Appeal or Motion, was received by USCIS on September 18, 2015, which is 
42 days after the decision was issued.1 Accordingly, the combined motion to reopen and reconsider 
was untimely filed. 
C. Analysis 
As the motion to reconsider was untimely, it will be denied. 8 C.F.R. § 103.5(a)(l) and (4). Neither 
the Act nor the pertinent regulations grant us the authority to extend the 33-day time limit for filing a 
motion to reconsider. 
Regarding the motion to reopen, in this case, the Petitioner has not provided a reason for untimely 
filing the motion to reopen. The Petitioner did not, therefore, establish that the delay in filing the 
motion to reopen was reasonable and beyond its control. Accordingly, the motion to reopen will 
also be denied. 8 C.F.R. § 103.5(a)(l) and (4). 
II. MOTION TO REOPEN REQUIREMENTS 
Although the untimely filing of the motion to reopen is dispositive and requires that the motion be 
denied, we will now discuss why the submission of this motion would not have satisfied the 
substantive requirements. Even if the motion to reopen had been timely filed, or if the Petitioner 
were able to establish that the delay in filing the motion to reopen was reasonable and beyond its 
1 Although the Petitioner initially filed the Form I-290B prior to this date, it was rejected on September 14, 2015, 
because the check date on the payment submitted was not current. An appeal must be properly completed and executed 
in accordance with the applicable regulations and/or the form instructions. See 8 C.F.R. § 103.2(b)(l). Rejected 
applications and petitions will not retain a filing date. See 8 C.F.R. § 103 .2(a)(7)(iii). There is no appeal from such 
rejection. ld. 
2 
Matter of M-A-A-F-C-, Inc. 
control, the motion would still be denied because it does not meet the requirements of a motion to 
reopen. 
The submission constituting the combined motion consists of the following: (1) the Form I-290B; (2) 
the Petitioner's brief; and (3) previously submitted materials including job postings, information 
regarding requirements for group teachers in New York, and copies of the Form I-129 and its 
submissions. 
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 the 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 submission of a Form I-290B, Notice of Appeal or Motion, 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." 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 
"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." 2 
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 
2 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part: 
Each 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. 
Matter of M-A-A-F-C-, Inc. 
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. Analysis 
In addition to satisfying the minimum requirements at 8 C.F.R. § 103.5(a)(2), the Petitioner must 
also establish that the new facts to be proven in a motion to reopen possess such significance that 
they would likely change the results of the case. Matter of Coelho, 20 I&N Dec. at 473; see also 
Maatougui v. Holder, 738 F.3d at 1239-40. "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. 
The motion does not state new facts that would be presented if the proceeding were to be reopened. 
The Petitioner provided the same information regarding group teacher requirements in New York, 
which we addressed in our decision and found that they do not establish that the proffered position 
qualifies a specialty occupation. 3 As such, the Petitioner's motion does not satisfy the requirements 
of a motion to reopen. The motion to reopen will be denied. 
III. CONCLUSION 
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 of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be denied, 
the proceedings will not be reopened or reconsidered, and our previous decision will not be 
disturbed. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of M-A-A-F-C-, Inc., ID# 15864 (AAO Mar. 21, 2016) 
3 We further noted that since the specialty occupation issue is dispositive of the Petitioner's appeal, we will not address 
additional deficiencies identified on appeal. 
4