dismissed H-1B Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 6411577 
Motion on Administrative Appeals Office Decision 
Form I-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b) , 8 U.S .C. § 110l(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 speci alty (or its equivalent) as a minimum prerequisite for entry into 
the position . 
The Directo r of the California Service Cente r denied the petition , concluding that the Beneficiary is 
not qualified to perform the duties of the proffered position. We dismissed the Petitioner 's appeal and 
its subsequent combined motion to reopen and reconsider , concluding that the evaluations of the 
Beneficiary's work experience did not satisfy requirements. The matter is again before us on a 
combined motion to reopen and reconsider. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S .C. § 1361. Upon review , we will dismiss the combined motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration , a petitioner must meet the formal filing requirements (such as, 
for instance , submission of a properly completed Form I-290B , Notice of Appeal or Motion , with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.S(a)(l). 
A motion to reopen is based on factual grounds and must ( 1) state the new facts to be provided in the 
reopened proceeding ; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application oflaw or policy ; and (3) establish that the decision was incorrect 
based on the evidence ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § 103.5(a)(l)(i). 
Therefore, the filing before us is not a motion to reopen and reconsider the denial of the petition or the 
dismissal of the appeal. Instead, the filing is a motion to reopen and reconsider our most recent 
decision. Therefore, we cannot consider new objections to the earlier denial or dismissal decisions, 
and the Petitioner cannot use the present filing to make new allegations of error at prior stages of the 
proceeding. 
II. LAW 
Section 214(i)(2) of the Act, 8 U.S.C. § l 184(i)(2), states that an individual applying for classification 
as an H-1B nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(I) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately 
engaged in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/ or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and have recognition of expertise in 
the specialty through progressively responsible positions directly related to the 
specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following: 
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(]) An evaluation from an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an individual's 
training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONS!); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 1 
( 4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
( 5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation 
as a result of such training and experience .... 
III. ANALYSIS 
As the Petitioner did on appeal and in its prior motion, it asserts that the Beneficiary's experience is 
equivalent to a U.S. bachelor's degree in electrical engineering pursuant to 8 C.F.R. 
§ 214.2(h)( 4)(iii)(C)( 4). In its prior motion, the Petitioner limited its discussion to the evaluation from 
university professor I I The Petitioner again relies on this evaluation in its instant 
motion, which it asserts satisfies the requirements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(]). 2 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(D)(]) requires an evaluation from an official with authority 
to grant college-level credit for training or experience in the specialty at an accredited college or 
university which has a program for granting sut credit bard on an individual's training or work 
experience. On prior motion, we concluded that.__ ___ _.' s evaluation did not meet all elements 
of this criterion. In reviewing the Petitioner's current combined motion, we reach the same conclusion 
abourl Is evaluation. 
1 The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's 
evaluation of education only, not training or work experience. 
2 Again, the Petitioner does not claim eligibility under any other criteria at 8 C.F.R. §§ 214.2(h)(4)(iii)(C)-(D). and 
therefore, no other criteria will be discussed. 
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A. Motion to Reopen 
In dismissing the prior motion, we noted that the evidence of the extent ofl Is authority did 
not establish that he has the "authority to grant college-level credit for training and/or experience in 
the specialty at an accredited college or university," as required by 8 C.F.R. § 214.2(h)(4)(iii)(D)(]). 
The Petitioner, relying on a letter from Morningside Evaluations, a credentials evaluation service 
which specializes in evaluating foreign educational credentials, asserted that I I has the 
requisite authority under "a practical reading of the regulation at 8 CFR § 2 l 4.2(h)( 4)(iii)(D)(l )." We 
dismissed the Petitioner's assertion, noting that we do not have the discretion to disregard the plain 
language of 8 C.F.R. § 214.2(h)(4)(iii)(D)(l), which requires an evaluator of a beneficiary's training 
or work experience to have the "authority to grant college-level credit for training and/or experience 
in the specialty at an accredited college or university" in order to establish that a beneficiary is 
qualified to perform services in a specialty occupation in lieu of possessing a bachelor's or higher 
degree in a specific specialty from an accredited U.S. college or university. 
In support of the instant motion, the Petitioner submits additional documentation to establish 
eligibility. For the reasons below, we conclude that the Petitioner has not established new facts 
sufficient to satisfy the requirements to reopen. 
~iously determined, we again find that the record does not include sufficient evidence that D 
L___J is an official "who has the authority to grant college-level credit for training and/or experience 
in the specialty at an accredited college or university which has a program for granting such credit 
based on an individual's training and/or work experience." On motion, the Petitioner submits a new 
letter from I I dated May 22, 2019, describing the Prior Leaming Assessment Program at 
D University. The new letter from I I does not discuss his authority to grant college-level 
credit for training and/or experience or provide any new assertions regarding such authority. 
The Petitioner also submits T upi~ted letter from I I the Dean ofl I of 
Engineerin, and Technology at niversity, accompanied by a letter from the registrar confi~ing 
I 's position at the university. However, this letter simply repeats the statements contained 
in previous letters submitted for our review. Specifically, the letter states that ,j I has 
experience in evaluating the academic and work experience of foreign applicants to the EE graduate 
program." This letter does not state thatl I has the authority to grant college credit for 
training and experience. 
Therefore, we affirm our prior conclusion that the record does not establish that~I ---~I has the 
authority to grant college-level credit for training or work experience in the specialty. 
Regarding the existence of a program for granting credit for training or work experience, the record 
does not establish thatc=]University has a qualifying program. In its prior motion, the Petitioner 
submitted a printout from the University's webpage titled "Experiential Learning Program Information 
for Faculty and Staff/' and asserted that, since the webpage indicated that "any undergraduate degree 
or nondegree student" enrolled at the university could participate in the program, this program 
undoubtedly included all programs, including the university's electrical engineering program. We 
dismissed the Petitioner's assertions, noting that the webpage was silent on whether the School of 
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Electrical Engineering and Computer Science also participates in the program and, moreover, whether 
it grants college-level credit for training or work experience in the specialty. 
The new letter from I I submitted in support of the instant motion, entitled "Commentary on 
c=Juniversity's Program for Awarding Credit Based on Professional Experience," states that the 
University offers a "Prior Leaming Assessment Program," also referred to as the portfolio pro
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gram. I 
I !farther states that 'This program is available to all colleges and schools within 
University, including the School of Electrical Engineering and Computer Science, where I teach." The 
record, however, contains no corroborating evidence fromOUniversity to affirm this statement. 
In addition, the Petitioner submitted a printout regarding~University undergraduate admissions 
for 2018-2019, which states that there are "several methods of receiving ~ University credit for 
work previously completed or for general knowledge and experience are available.." The section under 
"Experiential Leaming and Course Credit by Examination" indicated how a student may earn credit 
through experience gained, and stated that "experiential learning ( also referred to as portfolio-based 
assessment) is designed to provide credit for college-level experience gained though employment or 
other experience." It farther noted that "you follow a specific process to compile a portfolio ofleaming 
that is received by appropriate University faculty members and assigned a credit value." However, 
the Petitioner did not provide sufficient information regarding the process of the portfolio-based 
assessment and whether! ~eviewed this specific portfolio for the Beneficiary. I I 
does not provide details of how he assessed the Beneficiary's work experience in the context of the 
university's credit graTing program. Accordingly, we affirm our prior conclusion that the record does 
not establish that University has a program for granting credit for training or work experience in 
the specialty. 
2. Motion to Reconsider 
The Petitioner also asserts that our decision was based on an incorrect application of law or policy. 
Specifically, the Petitioner takes issue with our reliance on the plain language of the regulations, and 
asserts that our "rigid interpretation of the regulation is erroneous." 
As noted, 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 U.S. Citizenship and Immigration Services policy. Here, 
however, the Petitioner has not presented sufficient evidence or argument on motion to establish that 
our analysis was incorrect as a matter of law. The Petitioner merely objects to our "rigid 
interpretation" of the regulations, but does not cite to any pertinent statutes, regulations, and/or 
precedent decisions to establish that our prior decision was erroneous. Accordingly, the Petitioner's 
arguments offered on motion do not provide a sufficient basis to reconsider the prior decision. 
IV. CONCLUSION 
The Petitioner has not established eligibility for the requested benefit. The combined motion will be 
dismissed for the above stated reasons, with each considered an independent and alternative basis for 
the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
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immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that 
burden. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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