dismissed H-1B Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
MATTER OF RNE-S-R-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 8, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a "Provider of Healthcare Professionals," seeks to temporarily employ the 
Beneficiary as a "Quality Assurance Manager" under the H-1B nonimmigrant classification. 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). The Director, California Service Center, denied the petition. The Petitioner 
appealed the denial and we dismissed the appeal. The matter is now before us on a motion to 
reconsider. The motion will be denied. 
We dismissed the appeal on two grounds: (1) that the Petitioner had not established that the 
proffered position qualifies as a specialty occupation; and (2) that the Petitioner had not established 
that it has secured definite, non-speculative work for the Beneficiary for the employment period 
specified in the petition, i.e., that a bonafide job offer to the Beneficiary exists. 
On motion, the Petitioner addresses only one issue: "whether or not there exists a bona fide job offer 
from the petitioner on behalf of the beneficiary to work at the assigned facility." 
More specifically, the Petitioner acknowledges on motion that the agreement between the Petitioner 
and the end-client facility is "lacking some teeth for due execution, such as assuring that the 
beneficiary will eventually work at the time requested." Nevertheless, the Petitioner requests us "to 
understand the real situation in this particular industry." The Petitioner states that "[g]enerally, the 
regular staffing of medical professionals at a given healthcare facility is in most cases 
unpredictable." Thus, despite the "generic" wording of the aforesaid agreement, the Petitioner states 
that "in reality, however, the facility is guaranteed personnel replacement by manpower agencies 
like the petitioner to cover for the insufficiency." The Petitioner concludes that our finding that 
there is not bona fide, definite, and non-speculative work for the Beneficiary "is rather harmless 
since remedies are available in the event what was feared of happening would really take place." 
The Petitioner also claims that "the Regulation does not abhor moving the medical professional to 
another end client facility provided Amendment is filed if needed in a given circumstance." 
Matter of RNE-S-R-, LLC 
I. MOTION REQUIREMENTS 
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 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 Reconsider 
The regulation at 8 C.F.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 
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 4 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions when filed and must establish that the 
decision was based on an incorrect application of law or policy, and that the decision 
was incorrect based on the evidence of record at the time of decision. 1 
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). 
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 I to the contrary, and such instructions are incorporated into the regulations requiring its submission." 
2 
(b)(6)
Matter of RNE-S-R-, LLC 
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 ofO-S-G-, 24 I&N Dec. at 60. 
II. DISCUSSION 
For the reasons discussed below, the motion to reconsider will be denied. 
The Petitioner's motion does not satisfy the requirements of a 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 must 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) (requirements for a motion to reconsider); Instructions for Motions to 
Reconsider at Part 4 of the Form I-290B. 
Here, the Petitioner's stated reasons for reconsideration are insufficient to establish that our decision 
was incorrect. First, the Petitioner does not contest or even address our finding that the evidence of 
record was insufficient to establish the proffered position as a specialty occupation. The Petitioner 
has thus not established that we erred in dismissing the appeal on this particular ground. 
Second, the Petitioner's stated reasons are insufficient to establish that our finding with regard to the 
speculative nature of the job offer was incorrect. The Petitioner acknowledges that the agreement 
between the Petitioner and the end-client facility is "generic" and "lacking some teeth for due 
execution, such as assuring that the beneficiary will eventually work at the time requested." 
Notwithstanding, the Petitioner implies that this agreement is probative evidence due to the "real" 
nature of the nursing industry, in which "regular staffing ... is in most cases unpredictable" and that 
"personnel replacement by manpower agencies like the petitioner" guarantees staffing to cover for 
any deficiencies faced by the facility. The Petitioner's assertions are unpersuasive. 
The Petitioner's general comments about the nature of the nursing industry and the role of staffing 
agencies do not specifically and directly address the issue at hand: whether the Petitioner has secured 
definite, non-speculative work for the Beneficiary for the employment period specified in the 
petition. That is, the Petitioner's comments do not directly address whether the specific end-client, 
has specifically contracted with the Petitioner for the Beneficiary's 
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Matter of RNE-S-R-, LLC 
services under the terms and conditions specified in the petition. Merely asserting that the end-client 
will be guaranteed replacement personnel by the Petitioner or other staffing agencies in the event of 
a staffing deficiency is insufficient to establish that the Petitioner has secured bona .fide, definitive, 
and non-speculative work for the Beneficiary in the manner asserted in the petition. 
The Petitioner claims that the speculative nature of the proffered position is "rather harmless since 
remedies are available." The Petitioner also claims that "the Regulation does not abhor moving the 
medical professional to another end client facility provided Amendment is filed if needed in a given 
circumstance." It is unclear what the Petitioner meant by these statements. If, however, the 
Petitioner is trying to say that speculative employment is permitted in the H -1 B program, then these 
assertions are unpersuasive. The Petitioner has not cited to any pertinent statutes, regulations, and/or 
precedent decisions to support such a proposition. As stated in our previous decision, the agency 
made clear long ago that speculative employment is not permitted in the H-1B program. See 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 
(proposed June 4, 1998) (to be codified at 8 C.P.R. pt. 214) (stating, in part, that "Historically, the 
Service has not granted H-1 B classification on the basis of speculative, or undetermined, prospective 
employment."). Likewise, USCIS regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). A 
visa petition may not be approved based on speculation of future eligibility or after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg'l Comm'r 1978). 
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. Accordingly, the Petitioner's motion to reconsider will be denied. 
III. CONCLUSION 
The motion does not meet the requirements for a motion to reconsider; therefore, the motion will be 
denied.2 
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 o[Otiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. Accordingly, the motion to reconsider will be denied, the proceedings will not be 
reconsidered, and our previous decision will not be disturbed. 
2 
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. § I 03.5(a)(l )(iv). 
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Matter of RNE-S-R-, LLC 
ORDER: The motion to reconsider is denied. 
Cite as Matter of RNE-S-R-, LLC, ID# 15458 (AAO Feb. 8, 2016) 
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