dismissed H-1B Case: Export

(b)(6)
DATE: 
JUN 0 2 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 
The petitioner appealed the denial to the Administrative Appeals Office, and we dismissed the appeal 
and a subsequent motion to reopen. The matter is again before us on a motion to reopen. The 
motion will be dismissed. 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 15-
employee "Export Company " established in In order to employ the beneficiary in what it 
designates as an "Operations Management Analyst" position, the petitioner seeks to classify him as 
a nonimmigrant worker in an H-lB specialty occupation pursuant to section 10 1(a)(15)(H)( i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 110 1(a)(15)(H) (i)(b). 
The Director denied the petition, concluding that the petitioner did not establish that the proffered 
position qualifies as a specialty occupation in accordance with the applicable statutory and regulatory 
provisions. The petitioner, through its previous counsel, submitted an appeal of the Director's 
decision. We reviewed the record of proceeding and determined it did not contain sufficient evidence 
to establish that the petitioner would employ the beneficiary in a specialty occupation position. We 
provided a comprehensive analysis of the evidence and dismissed the appeal. The first motion in 
this matter was dismissed for not meeting the requirements pertinent to motions to reopen. 
I. MOTION REQUIREMENTS 
For the reasons discussed below, we conclude that the instant motion will also be dismissed because 
the instant motion does not meet the requirements of a motion to reopen and does not merit 
reopening. 
A. Overarching Requirement for Motions by a Petitioner 
The provisiOn at 8 C.F.R. § 103.5(a)(1)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration Services (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, [(a)] reopen the 
proceeding or [(b)] reconsider the prior decision. 
Thus, to merit reopening, the submission must not only meet the formal requirements for filing 
(such as, for instance, submission of a Form I-290B that is 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.P.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: 
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Page 3 
NON-PRECEDENT DECISION 
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 3 of the Form I-290B, which 
states: 1 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits· and/or documentary evidence. 
Further, the new facts must possess such significance that, 11if 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). 
II. DISCUSSION AND ANALYSIS 
The submissions constituting the instant motion consist of the following: (1) the Form I-290B; (2) a 
brief; (3) a statement by the petitioner's president; and (4) materials submitted 
to the Florida Bar. 
The previous motion contended that the petitioner had satisfied all H-1B evidentiary requirements, 
but was largely concerned with a claim of inadequate representation by previous counsel. It 
contained a statement signed by pertinent to that asserted inadequate 
representation. In the decision on that motion, we declined to consider the claim of inadequate 
representation, finding that the evidence submitted did not satisfy the requirements of Matter of 
Lozada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1st Cir. 1988) pertinent to such claims. 
Among the requirements of Lozada is "an affidavit of the allegedly aggrieved respondent setting 
forth in detail the agreement that was entered into with counsel with respect to the actions to be 
taken and what representations counsel did or did not make to the respondent in this regard." 
The statement by Mr. submitted with the instant motion is substantially similar to a 
statement provided with the first motion, in that it describes an agreement between the petitioner 
and the petitioner's previous attorney to provide representation and assistance in this matter, and 
asserts that previous counsel's assistance was inadequate. 
One difference between the two statements is that the first statement is headed, "Statement of 
Director of [the petitionerl," and the statement submitted with the instant 
motion is headed, "Affidavit of Employer and President of [the petitioner]." 
1 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part: 
Every 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 1 to 
the contrary, such instructions are incorporated into the regulations requiring its submission. 
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(b)(6)
NON-PRECEDENT DECISION 
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However, changing the title of that document to "Mfidavit" does not convert Mr. 
statement to an affidavit and does not satisfy the affidavit requirement of Lozada. 
Section 92.50, Florida Statutes (2014), states in pertinent part: 
Oaths, affidavits, and acknowledgments . . . may be taken or administered by or 
before any judge, clerk, or deputy clerk· of any court of record within this state, 
including federal courts, or before any United States commissioner or any notary 
public within this state. The jurat, or certificate of proof or acknowledgment, shall be 
authenticated by the signature and official seal of such officer or person taking or 
administering the same .... 
Mr. statement submitted with the second motion does not identify any court official or 
notary public before whom it was sworn and contains no other indication that it was signed under 
oath. Further, it is not accompanied by the requisite jurat, or certificate of proof or 
acknowledgment. As such, it does not appear to qualify as an affidavit pursuant to Florida law. For 
this reason, the statement of submitted with the instant motion to reopen does 
not aid that motion in meeting the requirements of Lozada. 
The motion is also accompanied by a �reviously submitted "Affidavit" from the beneficiary who is 
identified as the petitioner's president. As we noted in our earlier decision on motion, the notary 
public certification under the beneficiary's signature attests to the personal appearance of a different 
person, i.e., President, " as affirming the truth and correctness of the 
statements in the document signed by the beneficiary, rather than attesting to the appearance of the 
beneficiary. The notary indicates that a driver's license was produced to identify the signatory, and 
the record includes a photocopy of the beneficiary's driver's license on the page following the 
notary's certificate. However, the notary's certificate does not correctly identify the signatory of the 
document to which it is appended; therefore, the affidavit does not appear to have been properly 
authenticated. 
Further, Matter of Lozada also requires that the appeal (or motion) indicate whether a complaint has 
been filed with appropriate disciplinary authorities with respect to any violation of former counsel's 
2 There is no evidence in the record that the beneficiary is the petitioner's officer or authorized 
representative. An Internet search of the Florida Department of State, Division of Corporations, for the 
petitioner revealed the names of the petitioner's current president, vice-president, and general manager as 
well as the names of the officers identified in the petitioner's annual reports filed in 2012, 2013, 2014, and 
2015. The beneficiary's name was not listed as an officer of the petitioner. See 
(last visited May 27, 2015). 
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NON-PRECEDENT DECISION 
Page 5 
ethical or legal responsibilities. While the record does contain evidence that the beneficiary filed a 
complaint with the Florida Bar Association, there is insufficient evidence that the petitioner has 
actually filed a complaint regarding the assistance it received from its former counsel. The affected 
party in this matter is the petitioner and the beneficiary has no standing in this matter. See 8 C.P.R. 
§ 103.3(a)(l)(iii)(B). As noted above, the record does not include documentary evidence that the 
beneficiary is an officer of the petitioner or is an authorized representative. The relevant inquiry is 
whether the petitioner, and not the beneficiary, received ineffective assistance. 
As such, the petitioner has not satisfied the procedural requirements described above, and the claim 
of ineffective assistance of counsel is not supported by competent evidence. 
The facts alleged in the instant motion were considered prior to the issuance of the decision on the 
previous motion and the petitioner has not established that the evidence submitted with this motion 
would change the outcome of this case if the proceeding were reopened. 3 
"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 (19 88)). A party seeking to reopen a proceeding bears a "heavy burden" of proof. INS v. 
Abudu, 485 U.S. at 110. With the current motion, the petitioner has not met that burden. 
III. CONCLUSION 
In closing this proceeding, we will briefly note and summarize some of the shortcomings that we 
observed in the record. We do so with the intention that, if the petitioner seeks again to employ the 
beneficiary or another individual in the proffered position, it will submit sufficient evidence to 
reconcile these shortcomings when filing a future H-1B petition with USCIS. 
To qualify as a specialty occupation position, a position must require a minimum of a bachelor's 
degree in a specific specialty or its equivalent. The petitioner has never effectively alleged that the 
proffered position qualifies as a specialty occupation position. We observe that in an unsigned 
3 More concretely, we observe that the petitioner has asserted that previous counsel filed duty descriptions 
that were, for various reasons, inadequate to demonstrate that the proffered position is a specialty occupation 
position. However, the petitioner has never subsequently submitted a detailed description of the proffered 
position's duties, which the petitioner asserts are, unlike the previous descriptions, accurate and complete, 
and which demonstrate that, assuming they are accurate, the proffered position qualifies as a specialty 
occupation position. Thus, even if we were to find for the petitioner on claim of incompetent representation, 
we would also find that the petitioner has not submitted evidence sufficient to show that the instant visa 
petition should be approved. As such, the new facts alleged do not show that "if proceedings ... were 
reopened, with all the attendant delays, the new evidence offered would likely change the result in the case," 
and does not satisfy the requirements of Coelho and Maatougui, supra. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
January 18, 2013 letter on the petitioner's letterhead, the petitioner states that a bachelor's degree is 
the minimum educational qualification for the proffered position, but not that the degree must be in 
any specific specialty. USCIS consistently interprets the term "degree" in the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 
F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialtyu as "one that 
relates directly to the duties and responsibilities of a particular position "). 
The petitioner also submitted a position evaluation, dated January 30, 2013, which states that the 
proffered position requires a bachelor's degree in operations management, management, business 
administration, or a related field. That is a somewhat narrower requirement, in that it states that the 
requisite degree must be in a range of subjects. However, a degree with a generalized title, such as 
business administration, without further specification, is not a degree in a specific specialty. Cf 
Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). As such, an educational 
requirement that may be satisfied by an otherwise undifferentiated bachelor's degree in business 
administration is not a requirement of a minimum of a bachelor's degree in a specific specialty or its 
equivalent. This is among the reasons that a requirement of a minimum of a bachelor's degree or its 
equivalent in operations management, management, business administration, or a related field is not 
a requirement of a minimum of a bachelor's degree in a specific specialty or its equivalent. Further 
still, had that position evaluation stated a requirement of a minimum of a bachelor's degree in a 
specific specialty or its equivalent, the petitioner would have been obliged to reconcile that 
statement with the January 18, 2013 letter, which suggests that the proffered position requires a 
bachelor's degree, but not that the degree must be in any specific specialty. 
The documents presented with the instant motion do not satisfy the requirements of a motion to 
reopen. However, even if we overlooked that factor and considered the merits of the submitted 
documents and the arguments made therein, they would still fail to establish error in our decisions. 
The petitioner should note that, unless USCIS directs otherwise, the filing of a motion to reopen 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)(l)(iv). 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the motion will be dismissed, the 
proceedings will not be reopened or reconsidered, and our previous decisions will not be disturbed. 
ORDER: The motion is dismissed.