dismissed H-1B Case: Gymnastics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-I-G-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a gymnastics school, seeks to extend the Beneficiary's temporary employment as a 
gymnastics coach 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-1 B 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 
Beneficiary was not eligible for an H-1B extension beyond six years under the American 
Competitiveness in the Twenty-first Century Act. The Petitioner appealed the Director's decision to 
our office and we dismissed the appeal. Subsequently, the Petitioner submitted a motion to reopen 
and a motion to reconsider, 49 days after dismissal of the appeal. We denied the combined motion 
as untimely filed, and for not meeting the requirements of a motion to reopen and a motion to 
reconsider. Then, the Petitioner submitted a motion to reconsider our denial of the combined 
motion, which was filed 43 days after our decision. We therefore denied the motion to reconsider as 
being untimely filed. 
The matter is again before us on a motion to reopen and a motion reconsider. In its motion, the 
Petitioner submits a brief and asserts that the Director erred in denying the petition and we erred in 
dismissing the appeal. 
1 
We will deny the combined motion. 
1 We note that this motion is filed in response to our decision on December 23,2015. Therefore, the scope of this motion 
is limited to whether our decision to deny the motion to reconsider on December 23, 2015, was correct. 
Further, the Petitioner makes the same assertions previously raised, which we have already addressed in our prior 
decisions. 
(b)(6)
Malter of M-1-G 
T. LAW 
The regulation at 8 C.F.R. § 103.5(a)(l )(i) states, in pertinent part, the following: 
Any motion to reconsider an action by the Service filed by an applicant or petitioner 
must be filed within 30 days of the decision that the motion seeks to reconsider. Any 
motion to reopen a proceeding before the Service filed by an applicant or petitioner , 
must be filed within 30 days of the decision that the motion seeks to reopen, except 
that failure to file before this period expires, may be excused in the discretion of the 
Service where it is demonstrated that the delay was reasonable and was beyond the 
control of the applicant or petitioner. 
Every benefit request submitted to USCIS must be executed and filed in accordance with the form 
instructions and with the required fee(s). See 8 C.F.R. § 103.2(a)(l) and (6). The date of filing is 
not the date of mailing, but the date when USCI S receives the intended motion properly completed, 
signed, and accompanied by the required fee as specified by the Form 1-2908 . instructions. See 
8 C.F.R. § 103.2(a)(7)(i) and (b)(l). A benefit request which is rejected will not retain a filing date, 
and there is no appeal from the rejection. 8 C.F.R. § 103.2(a)(7)(iii). 
JI. ANALYSIS 
We issued the decision to deny the motion on December 23, 20 15. The decision provided notice to 
the Petitioner of the timefram e to tile a motion. USCIS received the Petitioner's Form I-2908 , 
Notice of Appeal or Motion, on January 26, 2016, which is 34 days after our decision was issued. 
Regarding the motion to reconsider, neither the Act nor the pertinent regulations grant us the authority 
to extend the 33-day time limit for filing a motion to reconsider. 8 C.F.R. § 103.5(a)(l)(i). Therefore, 
we will deny the motion to reconsider. 
Regarding.the motion to reopen, under 8 C.F.R. § 103.5(a)(l)(i), the late filing of a motion to reopen 
may be excused if the Petitioner demonstrates that the delay was reasonable and beyond its control. In a 
letter filed with this motion, the Petitioner asserts that this motion is "being overnight on 
January 24, 2016 to be received on January 25, 2016, due to [sic] January 23, 2016 falling on a 
Saturday." However, such explanation does not demonstrate that the delay was reasonable and beyond 
the control of the Petitioner. For example, there is no explanation on why the Petitioner could not have 
filed the motion before January 23, 2016. Therefore, we will deny the motion to reopen? 
2 We note, howeve r, that even if the Petitioner had estab lished that the delay was reasonab le and beyond .its control , we 
would not grant the motion because the Petitioner did not provide any new facts perta ining to why o ur prior denial of the 
motion to reconsider, which was also untimely filed, was incorrect. The regulation at 
8 C.F'.R: § I 03.5(a)(2) , 
" Requirements for motion to reope n," states: "A motion to reopen must [( I)] state the new facts to be prov ided in the 
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Matter of M-1-G 
III. CONCLUSION 
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. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of M-1-G-, ID# 17213 (AAO May 31, 20 16) 
reopened proceeding and [(2)] be supported by affidavits or other documentary evidence." The Petitioner did not 
mention any new facts or provide supporting documentary evidence in support of the present motion to reopen. 
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