dismissed H-1B Case: Electrical Contracting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-H-E-. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 14. 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an electrical contractor. seeks to extend the Beneficiary"s temporary employment as a 
'·business manager·· under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act section 101(a)(l5)(H)(i)(b). 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 
H-18 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 of the California Service Center denied the petition. The Petitioner appealed the 
denial, which we dismissed on the basis that the Petitioner had not established that the proffered 
position qualifies as a specialty occupation. The Petitioner tiled four motions to reconsider. all of 
which we denied. 
The matter is once again before us on another motion to reconsider. In its motion. the Petitioner 
asserts that our prior decisions should be reversed because we should have given the Petitioner 
deference to its prior approval. We will deny the motion. 
I. MOTION REQUIREMENTS 
A motion to reconsider is based on an incorrect application olfaw or poliLy. The requirements of a 
motion to reconsider are located at 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
On motion. the Petitioner asserts that our decision misstates and violates a U.S. Citizenship and 
Immigration Services (USCIS) memorandum authored by William R. Yates (Yates memo) regarding 
deference to prior nonimmigrant petition approvals. Memorandum from William R. Yates. 
Associate Director for Operations, USC IS. HQ 72/11.3. The S'ignificance of a Prior CIS Approral of 
a Nonimmigrant Petition in the Context o{ a S'ubsequent Determination Regarding Eligibility fhr 
Extension o{Petition Validity (Apr. 23. 2004), https://www.uscis.gov/laws/policy-memoranda. 
Matter alB-H-E-. Inc. 
First we note that USCIS recently rescinded the Yates memo. USCIS Policy Memorandum, PM-
602-0151, Rescission of' Guidance Regarding Deference to Prior Determinations o/Eiigihility in the 
Adjudication ol Petitions for Ettension ol Nonimmigrant Status (Oct. 23, 2017). 
https://www.uscis.gov/sites/dcfault/files/USCIS/Laws/Memoranda/20 17/2017 -I 0-23Rescission-of­
Deference-PM602015l.pdf. In rescinding the Yates memo. USCIS clarified that "an adjudicator's 
fact-finding authority ... should not be constrained by any prior petition approvaL but instead 
should be based on the merits of each case." The memo also emphasized that "the burden of proof 
remains on the petitioner. even where an extension of nonimmigrant status is sought:· 
We acknowledge that USCIS previously approved a nonimmigrant petition filed on behalf of the 
Beneficiary. However, the mere fact that USCIS, by mistake or oversight, approved a visa petition 
on one occasion does not create an automatic entitlement to the approval of a subsequent petition for 
renewal of that visa. See. e.g., Royal Siam Corp. v. Chert off; 484 F.3d 139, 148 (1st Cir 2007): 
Matter of' Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm ·r. 1988). Each nonimmigrant 
petition tiling is a separate proceeding with a separate record and a separate burden of proof. In 
making a determination of statutory eligibility, users is limited to the information contained in that 
individual record ofproceeding. 8 C.F.R. § 103.2(b)(l6)(ii). 
In the present matter, the Director reviewed the record of proceedings and concluded that the 
Petitioner was ineligible for an extension of the nonimmigrant visa petition's validity based on its 
failure to establish eligibility. In the final deniaL the Director clearly articulated the objective 
statutory and regulatory requirements and applied them to the case at hand. If the previous petition 
was approved based on the same minimal evidence of the Beneficiary's eligibility, the approval 
would constitute error on the part of the Director. Further, as articulated in our prior decisions. we 
agree with the Director's decision that the Petitioner did not establish that the proffered position 
qualities as a specialty occupation. 
Even if the Yates memo had not been rescinded, it did not mandate adjudicators to approve an 
extension petition where the record did not demonstrate eligibility for the benefit sought. The Yates 
memo merely provided internal guidance on giving deference to prior approvals. 
Further, the Petitioner claims that the Yates memo does not permit adjudicators to question prior 
determinations that are subjective. The determination of this or any other position's qualification as 
a specialty occupation is an objective. not subjective. determination. Here. the Director determined. 
and we affirmed. that the proffered position does not qualify as a specialty occupation under the 
relevant statutory and regulatory requirements. The Petitioner has not adequately explained why it 
believes this determination is subjective. 
The Petitioner also disagrees with our application of Matter ol ( 'hurch Scientology Jnt 'f. Sussex 
En;(g, Ltd v. Montgomery. 825 F.2d 1084. 1090 (6th Cir. 1987). and La. Philharmonic Orchestra\'. 
INS. No. 98-2855. 2000 WL 282785. at *2 (E.D. La. 2000) to the matter at hand. The Petitioner 
contends that we should have "invoked" the "authority" of the Yates memo over these cases. But 
again. the "authority" of the Yates memo (or any other USC IS memoranda) was limited to providing 
2 
Matter of B-1!-E-. Inc. 
internal guidance, and did not create enforceable substantive or procedural rights. See Ponce­
Gonzelez v, 775 F.2d at 1346; Loa-IIerrera, 231 F.3d at 989. The Petitioner's reliance on the 
recently rescinded Yates memo is misplaced. 
The Petitioner has not established that the proffered position qualifies as a specialty occupation 
based on the merits of the case. Therefore. the Petitioner has not established eligibility for the 
requested extension petition notwithstanding any prior approval. 
ORDER: The motion to reconsider is denied. 
Cite as 1"fatter o(B-H-E-. Inc .. ID# 599887 (AAO Dec. 14. 2017)