dismissed H-1B Case: Health Services Management

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JUl 2 7 2015 
DATE: 
JN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service! 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(I5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(I5)(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 . § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 1-2908) within 33 days of the date of this 
decision. The Form 1-2908 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. 
Ron Rosen berg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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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. The 
matter is again before us on a combined motion to reopen and motion to reconsider. The combined 
motion will be dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129) , the petitioner describes itself as a 
71-employee "Home Health Care Provider" established in In order to continue to employ the 
beneficiary in what it designates as a "Medical and Health Services Manager" position, the 
petitioner seeks to classify him as a nonimmigrant worker in 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 evidence did not establish that the proffered 
position qualifies for classification as a specialty occupation position. We dismissed a subsequent 
appeal , affirming 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. The petitioner subsequently submitted a Form I-290B, Notice of 
Appeal or Motion , contesting our decision to dismiss the appeal. 
I. MOTION REQUIREMENTS 
For the reasons discussed below , we conclude that this combined motion will 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)(l)(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, 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. § 103.5(a)(2), "Requirements for motion to reopen," states: 
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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 (1Oth 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) 
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 C.F.R. chapter I 
to the contrary, such instructions are incorporated into the regulations requiring its 
submission. 
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("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 en·or 
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. 
II. ANALYSIS 
The submission constituting the combined motion includes, inter alia: (1) the Form I-290B; and 
(2) a brief? In the brief, the petitioner asserted, as it did on appeal, that the proffered position is a 
medical and health services manager position and that such positions require a minimum of a 
bachelor's degree in a specific specialty or its equivalent. 
A. Dismissal of the Motion to Reopen 
Upon review, we find that the petitioner did not provide any new facts in this motion. Much of the 
evidence submitted with the motion was previously submitted and is of no direct relevance to 
whether the proffered position qualifies as a specialty occupation position. The petitioner has not 
established that the evidence submitted with this motion would change the outcome of this case if 
the proceeding were reopened. 
"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 has not met that 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 USCIS policy . A motion to reconsider a decision on an 
2 In addition to the Form J-2908, the petitioner provided documents that are not directly relevant to whether 
the proffered position qualifies for classification as a specialty occupation position, which is the issue upon 
which our February 26, 2015 decision was based. Those documents include, inter alia, a USCIS release 
pertinent to relief measures for victims of a typhoon and evidence pertinent to the beneficiary's 
qualifications. 
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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). 
In this matter, the petitioner claimed that the proffered position is a medical and health services 
manager position and that such positions require a minimum of a bachelor's degree in a specific 
specialty or its equivalent. In the decision of denial, the Director found that the petitioner had not 
demonstrated that the proffered position requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent. On appeal, the petitioner reiterated its position that the proffered 
position requires a minimum of a bachelor's degree in a specific specialty or its equivalent. We 
found that the evidence shows that the proffered position is not a medical and health services 
manager position but, rather, a registered nurse position, and further affirmed the Director's finding 
that the proffered position has not been shown to require a minimum of a bachelor's degree in a 
specific specialty or its equivalent. 3 
On motion, the petitioner reiterates the assertion that the proffered position is a medical and health 
services manager position and that such positions require a minimum of a bachelor's degree in a 
specific specialty or its equivalent. The petitioner contends that "the majority of the beneficiary's 
proposed duties" are duties performed by medical and health services managers and not those 
performed by registered nurses. The petitioner further asserts that the proffered position is "a 
generic one applicable to any number of industries such as Nursing Home Administrators, Clinical 
Manager, Health and Information Manager and Assistant Administrators ." 
In the brief submitted with the motion, the petitioner claims that the proffered position qualifies as a 
specialty occupation , describes the nature of the petitioner's business operations, reiterates the job 
description for the proffered position, and describes the beneficiary's qualifications for the proffered 
position. Upon review, we find that the petitioner did not properly state the reasons for 
reconsideration. While the petitioner cites the statute and regulations that govern the specialty 
3 We note that assuming arguendo that the proffered position is a medical and health services manager 
position, the petitioner has not established that the proffered position is a specialty occupation. For example, 
the petitioner asserts that according to the Department of Labor's Occupational Outlook Handbook 
(Handbook) , "a Bachelor's Degree is the minimum required level of education for entry" into this 
occupational category. However, we note that the Handbook does not indicate that a bachelor's degree in a 
specific specialty is required for such positions. Specifically, the Handbook reports that a degree in health 
services, long-term care administration, public health, public administration, or business administration are 
common for entry into the occupation. Notably , the Handbook states that a general-purpose bachelor's 
degree, i.e., a bachelor's degree in business administration, is acceptable to perform the duties of the 
occupation. However , a petitioner must demonstrate that the proffered position requires a precise and 
specific course of study that relates directly and closely to the position in question. Since there must be a 
close correlation between the required specialized studies and the position, the requirement of a degree with a 
generalized title , such as business administration, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 l&N Dec. 558 (Comm'r 
1988). 
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occupation classification, it does not articulate how our decision was based on an incorrect 
application of law or policy.4 
We conclude that the documents constituting this motion do not articulate how our decision on appeal 
misapplied any pertinent statutes, regulations, or precedent decisions to the evidence of record when 
the decision to dismiss the appeal 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. 
III. CONCLUSION 
The petitioner should note 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 ofOtiende, 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 decision will not be 
disturbed. 
4 In any event, we again find that the Director did not err in determining that the duties of the proffered 
position are performed by experienced registered nurses or head nurses. The petitioner initially claimed that 
it requires only a minimum of a bachelor's degree in nursing. Specifically, the description of the proffered 
position submitted with the petition lists management responsibilities as well as patient care duties and it also 
states, "Must have a Bachelor's Degree preferably in Nursing because of the nature of the job; with two (2) 
years of work experience in their field." Further, the petitioner's letter of support states, "Although 
requirements vary by facility, [the petitioner] requires a minimum of a Bachelor's of Science degree in 
Nursing." In response to the service center's Request for Evidence (RFE), the petitioner cited to a position 
evaluation provided by Dr. and changed its stated requirements to a "bachelor's degree in 
Physical Therapy , Nursing , Medical Records Management or related subject .. .. " The petitioner cited to 
Dr. >opinion on appeal and again on motion. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought 
has been established . 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner cannot offer a new 
position to the beneficiary , or materially change a position's title, its level of authority within the 
organizational hierarchy, its associated job responsibilities, or the requirements of the position . The 
petitioner must establish that the position offered to the beneficiary when the petition was filed merits 
classification for the benefit sought. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg . Comm'r 
1978). If significant changes are made to the initial request for approval, the petitioner must file a new 
petition rather than seek approval of a petition that is not supported by the facts in the record. The 
information provided by the petitioner in its response to the service center's RFE did not clarify or provide 
more specificity to the original requirements of the position, but rather changed the educational requirements 
for the proffered position. 
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