dismissed H-1B Case: Environmental Engineering

MATTER OF C-E- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 26,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an environmental abatement of hazardous materials company, seeks to extend the 
Beneficiary's temporary employment as an "environmental asbestos engineer" under the H -1 B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation 
position. We dismissed a subsequent appeal affirming the Director's decision.· In addition, we 
found that: (1) the labor condition application (LCA) does not correspond to the H-1B petition; and 
(2) the Petitioner had not demonstrated that the Beneficiary is qualified to work in the proffered 
position. 
The matter is now before us on a motion to reopen and a motion to reconsider. In its motion, the 
Petitioner asserts that the H-1B petition should be approved. 
We will deny the combined motion. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 1 03.5(a)(l )(i) includes the following statement limiting a 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 
Matter ofC-E- Corp. 
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 requi;ements 
shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 1 03.5(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 demonstrating eligibility at the time the 
underlying petition ... was filed. 
Further, the newJacts 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. § 1 03.5(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 when filed and must establish that the 
decision was based on an incorrect application of law or policy, and that the decision 
was incorrect based on the evidence of record at the time of decision. 
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Matter ojC-E- Corp. 
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 
pie<;:emeal fashion."). Rather, 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 
We will deny the combined motion because the motion does not merit reopening or reconsideration. 
With the instant motion, the Petitioner provided the following statement: 
The government is respectfully requested to reopen and reconsider its adverse 
decision for the following reasons: First, the Petitioner previously obtained an HlB 
approval for this Beneficiary, and was seeking simply to extend the Beneficiary's 
HlB status. The government should adhere to its original grant ofHlB status since it 
was properly made. Petitioner is a small minority owned business, and it requires an 
applicant who has a university degree to perform the tasks indicated in the petition. 
Second, the Petitioner could not file an amended labor condition to correct the error 
in the original filing because the ICERT system would not permit an amended filing 
retroactive to the period covered by the H1B1 filing. The technicalities of the ICERT 
system do not permit retroactive filings. The Petitioner only had notice of the need to 
make a retroactive filing after the petition was denied. 
A. Motion to Reopen 
The Petitioner has not presented any evidence that could be considered "new facts." Specifically, 
the Petitioner has not stated new facts or provided evidence to establish that the proffered position 
qualifies as a specialty occupation position. Further, rather than providing evidence that the 
Petitioner had a valid LCA when it filed the H-1 B petition, as required by 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(l), it appears to admit that the Petitioner did not have the required LCA, certified 
for the period of employment requested .in the H-1 B petition and for the correct prevailing wage. 
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Matter ofC-E- Corp. 
Moreover, the Petitioner did not submit rtew evidence that the Beneficiary is qualified to work in the 
proffered position. 1 
The Petitioner states no new facts supported by affidavits and/or documentary evidence 
demonstrating eligibility at the time the H-1B petition was filed. In fact, it has not addressed any of 
the bases of our decision on appeal. It does not, therefore, qualify as a motion to reopen. 
B. Motion to Reconsider 
The Petitioner's motion does not satisfy the requirements of a 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 must also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. See 
8 C.P.R. § 103.5(a)(3) (requirements for a motion to reconsider); Instructions for Motions to 
Reconsider at Part 4 of the Form I-290B. 
Here, the Petitioner's stated reasons for reconsideration are insufficient to establish that our decision 
was incorrect. On motion, the Petitioner asserts that it "previously obtained an H1B approval for 
this Beneficiary, and was seeking to simply extend the Beneficiary's H1B status." We are aware 
that the instant H-1B petition is an extension petition. However, a prior approval does not compel 
the approval of a subsequent petition or relieve the Petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. Temporary Alien Workers 
Seeking Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 
26, 1990) (to be codified at 8 C.F .R. pt. 214 ). A prior approval does not preclude USCIS from 
denying an extension of the original visa based on a reassessment of eligibility for the benefit 
sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x. 556 (5th Cir. 200'4). 
As the instant motion does not address any of the bases of the decision it challenges, it does not 
establish that the decision was incorrect based on the evidence of record when it was made, and does 
not qualify as a motion to reconsider. 
Ill. CONCLUSION 
The combined motion does not meet the requirements for a motion to reopen or a motion to 
reconsider and will be denied on that basis. 
1 Specifically, 8 C.F.R. § 214.2(h)(4)(iii)(C)(2) requires that, if the Beneficiary will rely on a degree awarded in a foreign 
country, the equivalency of the Beneficiary's foreign degree to a U.S. degree must be evaluated. The record does not 
contain such an evaluation. 
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Matter ofC-E- Corp. 
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.P.R.§ 103.5(a)(1)(iv). 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter o.fOtiende, 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 denied. 
Cite as Matter o.fC-E- Corp., ID# 124696 (AAO Sept. 26, 2016) 
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