dismissed H-1B Case: Finance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office· 
DATE: SEPT. 14, 2015 
MOTION OF ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a fast-food restaurant, seeks to employ the Beneficiary as a financial manager and to 
classify him as a nonimmigrant worker in a specialty occupation. See section 101 ( a)(15)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
On May 12, 2011, the Director of the Vermont Service Center denied the nonimmigrant visa 
petition. The Petitioner appealed this denial to the Administrative Appeals Office (AAO), and we 
dismissed the appeal on November 7, 2012. On December 6, 2012, the Petitioner filed a motion to 
reopen and reconsider, which we denied on July 14, 2014. On August 14, 2014, the Petitioner again 
filed a motion to reopen and reconsider, which we denied on February 6, 2015. The matter is once 
again before us on a motion to reopen and reconsider. The combined motion will be denied pursuant 
to 8 C.P.R.§ 103.5(a)(2), (3), and (4). 
The Director denied the petition, finding that the proffered position was not a specialty occupation, 
and we dismissed the Petitioner's subsequent appeal. Subsequently, the Petitioner filed two motions 
to reopen and reconsider, which were also denied. The decision that is the subject of the instant 
motion is our most recent decision issued on February 6, 2015, which denied the Petitioner's 
previous motion and affirmed our prior determinations that the Director's denial of the petition was 
correct. 
Although counsel indicated that he submitted the instant motion in response to our February 6, 2015, 
decision, he did not assert any mistakes of law or fact in that decision. Rather, counsel referenced an 
unspecified November 12, 2012 decision, and stated that we "failed to apply the tasks and 
descriptions of 'Financial Managers' to the duties of the beneficiary's job offer." We did not issue a 
decision to the Petitioner on November 12, 2012 and presume he is referring to our November 7, 
2012 decision dismissing the appeal. Regardless, for the motion, we will focus on our decision to 
deny the Petitioner's most recent motion because, in accordance with the regulations governing 
motions, as the latest agency decision, that decision is the proper subject of this combined motion. 
As indicated by the check mark at box F of Part 2 of the Form I-290B, counsel for the Petitioner 
elected to file both a motion to reopen and a motion to reconsider. 
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Matter of M-E-, Inc. 
I. EVIDENTIARY STANDARD 
As a preliminary matter, and in light of counsel's references to the requirement that we apply the 
"preponderance of the evidence" standard, we affirm that, in the exercise of our appellate review in 
this matter, as in all matters that come within its purview, we follow the preponderance of the 
evidence standard as specified in the controlling precedent decision, Matter of Chawathe, 25 I&N 
Dec. 369, 375-376 (AAO 2010). In pertinent part, that decision states the following: 
!d. 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" 1s made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursuant to that standard, however, we find that 
the evidence in the record of proceeding does not support counsel's contentions on motion that the 
petition at issue should be reopened or reconsidered. 
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Matter of M-E-, Inc. 
Applying the preponderance of the evidence standard as stated in Matter of Chawathe, we find that 
the Petitioner has not satisfied the requirements for either a motion to reopen or a motion to 
reconsider. Accordingly, the combined motion will be denied. 
II. MOTION REQUIREMENTS 
We will now discuss why the submission constituting the combined motion does not satisfy the 
substantive requirements for either a motion to reopen or a motion to reconsider. For the reasons 
discussed below, we conclude that tbe motion must be denied because the motion does not merit 
either reopening or reconsideration. 
A. Overarching Requirement for Motions by a Petitioner 
The proviSIOn at 8 C.F.R. § 103.5(a)(l)(i) includes the following statement limiting a users 
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 
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 requirements 
shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 1 03.5(a)(2), "Requirementsfor 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 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. 
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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Matter of M-E-, Inc. 
Further, the new facts 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 
ofCoelho, 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 3 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions. 
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 
piecemeal 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. 
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(b)(6)
Matter of M-E-, Inc. 
III. DISCUSSION AND ANALYSIS 
The submission constituting the motion consists of the following: 
Petitioner's counsel; (2) the Form I-290B; (3) a six-page brief 
( 4) documentary evidence , which consists of copies of the following: 
( 1) a letter signed by the 
submitted by counsel; and 
1. Our decision dated February 6, 2015, denying the Petitioner 's previous combined 
motion; 
2. Former counsel's undated response letter to the Director's January 12, 2011, 
request for evidence (RFE); 
3. The Petitioner's support letter, dated August 1, 2010; 
4. The Beneficiary's educational credentials and his resume; 
5. Internet printouts of four job announcements; 
6. Our decision dated November 7, 2012, dismissing the Petitioner's appeal; 
7. Financial documents for 
, and 
A. Denial of the Motion to Reopen 
Upon review of the evidence, we observe that most of the documents submitted on motion were 
previously a part of the record of proceeding or previously available. The new submissions on 
motion are four internet job announcements and financial documents from 2014.2 
In any event, we find that neither the Form I-290B, nor the brief on motion, nor any document 
submitted on motion "state[ s] new facts" or constitutes new facts to be provided if the proceeding 
were to be reopened. It logically follows that, without showing such new facts to be provided if the 
motion were to be reopened, the motion also does not establish new facts so significant as to likely 
change the outcome of this case if the proceeding were reopened for their consideration. Even if 
they constituted evidence of new facts to be provided in a reopened hearing - which is not the case -
the documents submitted on motion have little or no probative value towards establishing the 
proffered position as satisfying the statutory and regulatory provisions for a specialty occupation. 3 
2 Financial documents from 2012 and 2013 would have been available for submission for the previous motion filed on 
August 14, 2014. 
3 Even if these submissions did constitute the type of "new facts" supported by documentary evidence discussed in 
8 C.F.R. § 103.5(a)(2) , they still would not satisfy the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). For example, regarding 
the job advertisements, the Petitioner did not supplement the record of proceeding to establish that the advertising 
organizations both conduct business in its industry and also are similar to it. Nor did the Petitioner sufficiently establish 
that the primary duties and responsibilities ofthe advertised positions parallel those of the proffered position. Therefore, 
these submissions do not establish that organizations similar to the Petitioner in the Petitioner's industry routinely 
require at least a bachelor's degree in a specific specialty , or its equivalent, for parallel positions. Similarly, the financial 
documents submitted on motion do not demonstrate how the financial manager position as described requires the 
theoretical and practical application of a body of highly specialized knowledge such that a bachelor's or higher degree in 
a specific specialty or its equivalent is required to perfonn them . Nor do they demonstrate a past hiring history by the 
Petitioner of normally requiring a bachelor ' s degree in a specific specialty, or its equivalent, for the position. 
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Matter ofM-E-, Inc. 
Moreover, counsel provides no statements addressing the findings we articulated in our February 6, 
2015, decision. Counsel outlines no new facts upon which the motion to reopen is based, and further 
does not to support the motion with accompanying affidavits or documentary evidence in support of 
new facts. In sum, counsel has not made any assertions regarding the manner in which the motion 
meets the regulatory requirements. 
"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 (1988)). 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 and its counsel have not met that 
burden. 
B. Denial of the 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 a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. See 8 C.F.R. § 103.5(a)(3) (detailing the 
requirements for a motion to reconsider). 
As stated earlier, although counsel indicated that he submitted the combined motion in response to 
our February 6, 20 15, decision, counsel did not assert any mistakes in law and mistakes of fact in 
that decision. Rather, counsel referenced a prior decision, and stated that we "failed to apply the 
tasks and descriptions of 'Financial Managers' to the duties of the beneficiary's job offer." The 
documents constituting this motion do not articulate how our February 6, 2015, decision denying the 
previous motion misapplied any pertinent statutes, regulations, or precedent decisions to the evidence 
of record when the decision to deny the motion was rendered. The petitioner has therefore not 
submitted any document that would meet the requirements of a motion to reconsider. Accordingly, the 
motion to reconsider must be denied. 
IV. CONCLUSION 
It should be noted for the record 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.F.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 ofthe Act, 8 U.S.C. § 1361; Matter o.fOtiende, 26 I&N Dec. 127, 128 
Matter of M-E-, Inc. 
(BIA 2013). Here, that burden has not been met. Accordingly, the motion will be denied, the 
proceedings will not be reopened or reconsidered, and our previous decisions will not be disturbed. 
ORDER: The motion is denied. 
Cite as Matter of M-E-, Inc., ID# 13332 (AAO Sept. 14, 20 15)