dismissed H-1B Case: Esports

U.S. Citizenship 
and Immigration 
Services 
In Re : 9435468 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 11, 2020 
The Petitioner, a computer games developer and publisher, seeks to temporarily employ the Beneficiary 
under the H-lB nonimmigrant classification for specialty occupations . 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-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 of the California Service Center denied the petition , concluding that the record did not 
establish that the Beneficiary is qualified to perform the duties of a specialty occupation position, and 
it dismissed a subsequent combined motion to reopen and motion to reconsider. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) . Upon review, we 
will dismiss the appeal. 
I. PROCEDURALBACKGROUND 
The Petitioner seeks to employ the Beneficiary as an "associate writer, Esports ." The Director denied 
the petition, determining that the Beneficiary was not qualified to perform the duties of the proffered 
position. Specifically , the Director determined that the Petitioner had not demonstrated that she 
satisfied any of the requirements under 8 C.F.R. § 214 .2 (h)(4)(iii)(C) . 
The Petitioner filed a combined motion to reopen and motion to reconsider. The Director dismissed 
the motions, determining that the Petitioner 's submissions did not meet the motion requirements. The 
matter is now before us on appeal. 
Where, as here , an appeal is filed in response to a director's unfavorable action on a motion, the scope 
of the appeal is limited to the director's decision on that motion . The regulatory provision at 8 C.F.R. 
§ 103.3(a)(2)(i) states: "The affected party must submit the complete appeal including any supporting 
brief as indicated in the applicable form instructions within 30 days after service of the decision." 
(Emphasis added). Thus, if the Petitioner wished to appeal the Director's decision to deny the appeal, it 
should have elected to file that appeal within 30 days of the Director's denial decision. Here, though, the 
Petitioner elected to file a combined motion instead, thus limiting the scope of the appeal to the merits of 
the Director's decision to dismiss the motions. Our review and analysis in this matter, therefore, will 
focus on determining whether the Director's decision to dismiss the motions was correct. 
II. ANALYSIS 
On appeal, the Petitioner does not address the October 10, 2019, decision dismissing the combined 
motion to reopen and motion to reconsider. Rather, the appeal addresses the basis for the February 1, 
2019, denial of the petition, which is not the subject of the instant appeal and is not now before us. The 
only issue correctly before us on appeal is whether the immediate prior decision - that is, the Director's 
decision to dismiss the motion to reopen and motion to reconsider - was correctly decided. However, 
the Petitioner did not address that issue. Upon review, we concur with the Director's decision 
dismissing the motions. 
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). 
The Director dismissed the Petitioner's motion to reopen, determining that the Petitioner did not 
submit new facts that were supported by affidavits and/or documentary evidence demonstrating 
eligibility at the time of filing of the underlying petition. After review of the statements submitted on 
motion and the accompanying documentation, we concur with the Director's determination. A review 
of the evidence submitted on motion reveals no fact that could be considered new under 8 C.F.R. 
103.5(a)(2). The evidence submitted was either previously submitted, previously available and could 
have been discovered or presented in the previous proceeding, or post-dates the petition. The regulation 
at 8 C.F.R. § 103.2(b )(12) requires that the petition be denied when evidence submitted does not establish 
eligibility at the time of filing. 
The Director dismissed the Petitioner's motion to reconsider on the basis that: (1) it did not provide 
reasons for consideration that were supported by citations to appropriate statutes, regulations, or 
precedent decisions; (2) it did not establish that the decision was based on an incorrect application or 
law or policy; and (3) it did not show that the decision was incorrect based on the evidence of record 
at the time of the decision. Upon review of the Petitioner's submissions on motion, we agree that the 
motion did not satisfy the requirements of a motion to reconsider. The Petitioner did not specifically 
and sufficiently articulate why the Director's decision denying the petition was based on an incorrect 
application of law or U.S. Citizenship and Immigration Services policy, nor did the Petitioner cite to 
any relevant statute, regulation or relevant precedent decision that would support a contention that the 
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Director's decision to deny the petition was based upon a misapplication of statute, regulation, or 
policy to the evidence of record before the Director at the time of the decision to deny the petition. 
III. CONCLUSION 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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