dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10326861 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 5, 2020 
The Petitioner, an information technology services company, seeks to extend the temporary 
employment of the Beneficiary under the H- lB nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 Vermont Service Center Director denied the petition, concluding that the record did not establish 
that (1) the proffered position qualifies as a specialty occupation, and (2) the Beneficiary was qualified 
to perform services in a specialty occupation. The Director dismissed a subsequently filed motion to 
reopen and reconsider, and the matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. PROCEDURALBACKGROUND 
The Petitioner seeks to employ the Beneficiary as a "computer user program analyst/support." The 
Director denied the petition, determining that the proffered position was not a specialty occupation 
and that the Beneficiary was not qualified to perform the duties of the proffered position . 
The Petitioner filed a combined motion to reopen and motion to reconsider. The Director dismissed 
the motions, determining that the Petitioner's submissions did not meet the motion requirements. The 
matter is now before us on appeal. 
Where, as here, an appeal is filed in response to a director's unfavorable action on a motion, the scope 
of the appeal is limited to the director's decision on that motion. The regulatory provision at 8 C.F.R. 
§ 103.3(a)(2)(i) states: "The affected party must submit the complete appeal including any supporting 
brief as indicated in the applicable form instructions within 30 days after service of the decision." 
(Emphasis added). Thus, if the Petitioner wished to appeal the Director's decision to deny the appeal, it 
should have elected to file that appeal within 30 days of the Director's denial decision. Here, though, the 
Petitioner elected to file a combined motion instead, thus limiting the scope of the appeal to the merits of 
the Director's decision to dismiss the motions. Our review and analysis in this matter, therefore, will 
focus on determining whether the Director's decision to dismiss the motions was correct. 
II. ANALYSIS 
On appeal, the Petitioner does not address the November 7, 2019, decision dismissing the combined 
motion to reopen and motion to reconsider. Rather, the appeal addresses the basis for the July 11, 2019, 
denial of the petition, which is not the subject of the instant appeal and is not now before us. The only 
issue correctly before us on appeal is whether the immediate prior decision - that is, the Director's 
decision to dismiss the motion to reopen and motion to reconsider - was correctly decided. However, 
the Petitioner did not address that issue. Upon review, we concur with the Director's decision 
dismissing the motions. 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application oflaw or policy; and (3) establish that the decision was incorrect 
based on the evidence ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
The Director dismissed the Petitioner's motion to reopen, determining that the Petitioner did not 
submit new facts that were supported by affidavits and/or documentary evidence demonstrating 
eligibility at the time of filing of the underlying petition. 
On motion, the Petitioner submitted the following evidence: 
1. Foreign degree evaluation of the Beneficiary by.__ ______ ___, along with 
evaluator's CV; 
2. Excerpts from the U.S. Department of Labor's Occupational Outlook Handbook; 
3. Job Advertisements; and 
4. Documentation on past and present employees the Petitioner claims are employed in 
the same or similar positions. 
After review of the statements submitted on motion and the accompanying documentation, we concur 
with the Director's determination. Specifically, we note that all of the evidence submitted on motion 
was previously submitted in response to the Director's request for evidence. A review of the evidence 
submitted on motion reveals no fact that could be considered new under 8 C.F.R. 103.5(a)(2). 
The Director dismissed the motion to reconsider on the basis that it did not provide reasons for 
consideration that were supported by citations to appropriate statutes, regulations, or precedent 
decisions, and it did not show that the decision was incorrect based on the evidence of record at the 
time of the decision. Upon review of the Petitioner's submissions on motion, we agree that the motion 
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did not satisfy the requirements of a motion to reconsider. The Petitioner did not specifically and 
sufficiently articulate why the Director's decision denying the petition was based on an incorrect 
application of law or U.S. Citizenship and Immigration Services policy, nor did the Petitioner cite to 
any relevant statute, regulation or relevant precedent decision that would support a contention that the 
Director's decision to deny the petition was based upon a misapplication of statute, regulation, or 
policy to the evidence of record before the Director at the time of the decision to deny the petition. 
On appeal, we note that the Petitioner submits the exact same documentation it submitted in support 
of the motion, including a brief that is identical to the motion previously submitted. The Petitioner 
makes no assertion of error with regard to the Director's November 7, 2019, decision, which is the 
subject of this appeal. 
III. 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 appeal is dismissed. 
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