dismissed H-1B Case: Finance Management

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Date: FEB 0 6 2u15 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: VERMONT SERVICE CENTER Filel 
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) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
#:/� r �� pan Rosenberg / 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: On May 12, 2011, the Director of the California 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, counsel for the 
petitioner filed a motion to reopen and motion to reconsider, which we dismissed on July 14, 2014. 
The matter is once again before us on a motion to reopen and motion to reconsider. The joint motion 
will be dismissed pursuant to 8 C.F.R. § 103.5(a)(2), (3), and (4). 
On the Form I-129 petition, the petitioner describes itself as a fast-food restaurant established in 
with 20 employees and a gross annual income of approximately $670,000. It seeks to employ 
the beneficiary in what is claims is a finance manager position, and thus seeks to employ the 
beneficiary as a nonimmigrant worker m a specialty occupation pursuant to 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). 
The director denied the petition, finding that the proffered position was not a specialty occupation, 
and we dismissed the petitioner's subsequent appeal. The petitioner filed a motion to reopen and a 
motion to reconsider that decision, which we also dismissed. The decision that is the subject of the 
instant joint motion is our most recent decision issued on July 14, 2014, which dismissed the 
petitioner's joint motion and affirmed our prior determination that the director's denial of the petition 
was correct. 
On motion, counsel again contends that the decisions of both the service center and the AAO were 
based upon mistakes in law and mistakes of fact. We will focus on our decision to dismiss the 
petitioner's most recent joint motion because, in accordance with the regulations governing motions, 
as the latest agency decision, that decision is the proper subject of this joint 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. 
I. EVIDENTIARY STANDARD 
As a preliminary matter, and in light of counsel's references to the require ment 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: 
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. 
* * * 
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The "preponderance of the evidence" of "truth" is 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. 
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 joint motion will be dismissed. 
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 the joint motion must be dismissed 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)(1)(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: 
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[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. 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.P.R. § 103.5(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 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, "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.P.R.§ 103.5(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 
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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NON-PRECEDENT DECISION 
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. P.R. § 103.5(a)(3) and 8 C.P. 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.P.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. 
III. DISCUSSION AND ANALYSIS 
The submission constituting the combined motion consists of the following: (1) a letter signed by 
the petitioner's counsel; (2) the Form I-290B; (3) a six-page brief submitted by counsel; and (4) 
documentary evidence, which consists of copies of the following: 
1. Our decision dated June 14, 2014 dismissing the petitioner's previous joint 
motion; 
2. The certified Labor Condition Application (LCA) and supporting documentation 
regarding the prevailing wage and occupational classification for the present 
petition; 
3. An excerpt from the showing the 
corresponding Level I wage-rate at the time the LCA was certified; 
4. A letter dated March 29, 2007 from 
outlining the prevailing wage rate in Texas for a financial analyst; 
5. A three-page document that had been previously submitted into the 
record as an excerpt from what counsel described as "USCIS' Standard Operating 
Procedures (SOPs) for H-lB Adjudication, July 26, 2007." (It appears to be an 
excerpt from an edition of the U.S. Citizenship and Immigration Services 
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NON-PRECEDENT DECISION 
Adjudicator's Field Manual (AFM) outlining standard operating procedures for 
adjudication of H -lB petitions involving a specialty occupation. 
6. An excerpt from the 2014-2015 edition of the U.S. Department of Labor's 
Occupational Outlook Handbook (Handbook) pertaining to Financial Managers; 
7. The petitioner's Form 1120S, U.S. Income Tax Return for an S Corporation for 
2009; 
8. An excerpt from the O*Net OnLine's Summary Report for Financial Managers; 
9. An article from discussing the occupation of 
Financial Managers; 
10. The Form 1-129, Petition for Nonimmigrant Worker, pertaining to the present 
petition, which was filed on August 19, 2010; and 
11. The Form I-797 A, Notice of Action, reflecting the approval of the prior petition 
that had been filed for the beneficiary. 
A Dismissal 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 only new submission on 
motion is the undated article from which provides a general overview 
and profile of the occupation of financial manager. 
In any event, we find that neither the Form I-290B, 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, of course, that, without showing such new facts to be provided if the 
motion were to be reopened, the motion also fails to 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. 
Moreover, counsel reasserts many of the same arguments presented to us in the previous motion dated 
December 5, 2012, and provides no statements addressing the findings we articulated in our July 14, 
2014 decision. Counsel outlines no new facts upon which the motion to reopen is based, and further 
fails 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 prompt! y 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 
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burden. 
B. Dismissal 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 US CIS 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). 
Counsel for the petitioner once again asserts that USCIS erred in its prior determinations by failing to 
consider the uniqueness of the proffered position and by failing to give proper weight to the services 
the petitioner provides to the public. The documents constituting this motion do not, however, 
articulate how our decision dismissing the previous motion misapplied any pertinent statutes, 
regulations, or precedent decisions to the evidence of record when the decision to dismiss 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 dismissed. 
Moreover, as noted in our July 14, 2014 decision, the petitioner has not substantiated its characterization 
of the proffered position as the same as the one that had been approved for the beneficiary's H-lB 
employment by the previous employer. We again reiterate that it is not a position's title that will most 
determine recognition of a position as specialty occupation position. Rather, the most determinative 
factors are the extent, quality, and weight of the evidence addressing the substantive nature of the 
particular position and its specific performance requirements. The evidence of record before us, 
however, does not establish that the prior approved position and the one now before us were 
substantially the same. In a similar vein, we note that while counsel asserts on motion that the duties as 
initially described in the record were sufficient to establish the proffered position as a specialty 
occupation, he does not articulate where and how the record before us on motion established that, 
described as they were in terms of relatively abstract statements of generalized functions, the actual 
performance of the proffered duties would require at least a bachelor's degree, or the equivalent, in a 
specific specialty. 
Regardless, we again note that 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. 55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). A prior approval also 
does not even preclude USCIS from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). Furthermore, our authority over the service centers is 
comparable to the relationship between a court of appeals and a district court. Even if a service 
center director had approved the nonimmigrant petitions on behalf of the beneficiary, we would not 
be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra 
v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
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Finally, we also note that, while the motion argues that the beneficiary holds the equivalent of a U.S. 
bachelor's degree in a specific specialty by virtue of his education and experience, the motion fails to 
articulate a legal basis in statute, regulation, precedent decisions, or case law for establishing that we 
were incorrect in our determination on appeal or motion that neither the evaluation of experience and 
education submitted into the record nor any other evidence of record satisfied the 
beneficiary-qualification requirements specified in the regulations at 8 C.ER. § 214.2(h)(4)(iii)(C) & 
(D). 
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 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be 
dismissed, the proceedings will not be reopened or reconsidered, and our previous decisions will not be 
disturbed. 
ORDER: The combined motion is dismissed.