dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11133024 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 15, 2020 
The Petitioner seeks to employ the Beneficiary temporarily under the H-lB 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-lB 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 of the Vermont Service Center denied the petition , concluding that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation. We dismissed the Petitioner's 
appeal and two subsequent motions to reconsider. The matter is again before us on a motion to 
reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motions. 
I. ANALYSIS 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § 103.5(a)(l)(i) . The 
filing before us is not a motion to reconsider the denial of the petition. Instead, it is a motion to 
reconsider our most recent decision. Therefore, we cannot consider new objections to the earlier 
denial, and the Petitioner cannot use the present filing to make new allegations of error at prior stages 
of the proceeding. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
USCIS policy. 8 C.F.R. § 103.5(a)(3). The Board of Immigration Appeals (BIA) generally provides 
that a motion to reconsider asserts that at the time of the previous decision, an error was made. It 
questions the decision for alleged errors in appraising the facts and the law. The very nature of a 
motion to reconsider is that the original decision was defective in some regard. See Matter of Cerna, 
20 l&N Dec. 399, 402 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the 
proceedings. See Matter of Medrano, 20 l&N Dec. 216, 220 (BIA 1990, 1991). Rather, the "additional 
legal arguments" that may be raised in a motion to reconsider should flow from new law or a de nova 
legal determination reached in its decision that could not have been addressed by the party. Further, a 
motion to reconsider is not a process by which a party may submit, in essence, the same brief presented 
on appeal and seek reconsideration by generally alleging error in the prior decision. Matter of O-S-G-, 
24 l&N Dec. 56, 58 {BIA 2006). Instead, the moving party must specify the factual and legal issues 
raised on appeal that were decided in error or overlooked in the initial decision or must show how a 
change in law materially affects the prior decision. Id. at 60. 
Further, to merit reconsideration, a petitioner must meet the formal filing requirements (such as, 
submission of a properly completed Form l-290B, Notice of Appeal or Motion, with the correct fee), and 
show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(1). The regulation at 8 C.F.R. 
§ 103.5(a)(1)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the 
validity of the unfavorable decision has been or is the subject of any judicial proceeding." In this matter, 
the motion does not contain the required statement. Per the regulation at 8 C.F.R. § 103.5(a)(4), because 
the motion does not meet the applicable requirement, it must be dismissed. 
11. Additional Issues 
While not a basis for our decision, we would briefly note the following additional issue in the record 
that the Petitioner should address in any future filings. 
A. Labor Condition Application 
The Petitioner is required to submit a certified labor condition application (LCA) with its H-1B filing. 
According to section 212(n)(1)(A) of the Act, an employer must attest that it will pay a holder of an 
H-1B visa the higher of the prevailing wage in the "area of employment" or the amount paid to other 
employees with similar experience and qualifications who are performing the same services. See 20 
C.F.R. § 655.731(a); Venkatraman V. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel V. 
Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm'r Wage & Hour Div. v. 
Clean Air Tech. lnt'I, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 
30, 2009). 
In this matter, the Petitioner provided a Level 111 wage on the LCA. However, the Petitioner states 
that the position requires "8 years of experience in SAP Fl/CO modules." According to the "Prevailing 
Wage Determination Pol icy Guidance" for a job zone 4 occupation, the job zone for the occupation in 
this matter, if the experience requirement "is [g]reater than the experience and SVP range, enter a 3 in 
the Wage Level Column" on the "Appendix C: Worksheet for Use in Determining OES Wage Level." 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ NPWHC_Guidance_Revised_11_2009.pdf. A 
prevailing wage determination starts with an entry level wage and progresses to a higher wage level 
after considering the experience, education, and skill requirements of the Petitioner's job opportunity. 
Id. In this matter, the Petitioner included the "worksheet" and correctly indicated "2-4 years" under 
the "O*NET Usual Requirements" column for experience in Step 2 for a job zone 4 occupation. 
2 
However, it only indicated a one level increase for its eight year experience requirement, rather than 
the required three level increase. The experience requirement raised the wage level to a Level IV 
wage, which at the time of filing in the location of employment was $107,973. This is more than the 
100,000 salary offered to the Beneficiary.1 
While the U.S. Department of Labor (DOL) is the agency that certifies LCA applications before they 
are submitted to USCIS, DOL regulations note that the Department of Homeland Security (OHS) (i.e., 
its immigration benefits branch, USCIS) is the department responsible for determining whether the 
content of an LCA filed for a particular Form 1-129 actually supports that petition. See 20 C.F.R. 
§ 655.705(b), which states, in pertinent part (emphasis added): 
For H-1B visas ... OHS accepts the employer's petition (OHS Form 1-129) with 
the DOL-certified LCA attached. In doing so, the OHS determines whether the 
petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the [LCA] is a specialty occupation or whether the individual 
is a fashion model of distinguished merit and ability, and whether the qualifications 
of the nonimmigrant meet the statutory requirements for H-1B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1B petition filed on behalf of the Beneficiary. Here, the Petitioner has not established that it 
submitted an LCA that has been certified for the proper wage level. 
111. CONCLUSION 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The motion to reconsider is dismissed. 
1 See https://flcdatacenter.com/OesQuickResults.aspx?area=12060&code=15-1121&year=17 &source=l. 
3