dismissed H-1B Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF MGKI-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 25,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a "procurement and processor of scrap metal for export" company, seeks to 
temporarily employ the Beneficiary as a "logistics analyst" under the H-1B nonimmigrant 
classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101 ( a)(15)(H)(i)(b ). The Director, Vermont Service Center, denied the petition. The Petitioner 
filed an appeal, which we dismissed. The Petitioner then filed a motion to reopen, which we denied. 
The matter is now before us on a motion to reconsider. The motion to reconsider will be denied. 
I. LAW 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.P.R. § 103.5(a)(l)(i) includes the following statement limiting our 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 submission of a Form I-290B, Notice of Appeal or Motion, 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.P.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 
Matter of MGKI-, Inc. 
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 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." 
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) 
("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 of 0-S-G-, 24 I&N Dec. at 60. 
II. ANALYSIS 
The issue here is whether our decision dated July 27, 2015, to deny the motion to reopen was 
incorrect. In the decision, we concluded that the Petitioner did not state any new facts that would 
likely change the result of the appeal if it was reopened to consider them. 
In support of the present motion to reconsider, the Petitioner states: 
We have provided Sales and Purchase contracts which is the most confidential 
information you can trust on as it bear [sic] complete information for the parties 
Buyers and Sellers with complete payment terms, delivery method, with their 
complete address. 
We have also provided you the Nature of business with examples explaining 
that Logistics Analyst is the internal part of Market Research Analyst and on have 
[sic] very little resemblance on Market Research Analyst duties. 
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Matter of MGKI-, Inc. 
All of the above information was fresh information provided m prevwus 
petition. 
Also it is being noted that even the Purchase and Sales contract are provided is 
it not consider [sic] as the new evidence facts, since it is the regions where [the 
Petitioner] have not been able to enter until the Market Analysis completed by [the 
Beneficiary] .... 
The contracts and documents, while providing insight into the nature of the Petitioner's business, are 
not probative in showing the majority of the duties the Beneficiary would actually perform because 
they simply list information regarding the goods to be shipped. Further, while the sale and purchase 
documents may constitute new evidence not previously provided, the Petitioner has not persuaded us 
that the submission of these documents would change the result of our decision that the proffered 
position is not a specialty occupation. Specifically, even if we were to accept the Petitioner's 
argument that the proffered position is primarily that of a market research analyst, which we have 
not, classifying the proffered position as a market research analyst, without more, does not qualify it 
as a specialty occupation. 
For example, the subchapter of the U.S. Department of Labor's (DOL) Occupational Outlook 
Handbook entitled "How to Become a Market Research Analyst" states, in relevant part, the 
following about this occupational category: 
Education 
Market research analysts typically need a bachelor's degree in market research 
or a related field. Many have degrees in fields such as statistics, math, and computer 
science. Others have backgrounds in business administration, the social sciences, or 
communications. 
Courses in statistics, research methods, and marketing are essential for these 
workers. Courses in communications and social sciences, such as economics or 
consumer behavior, are also important. 
Some market research analyst jobs require a master's degree. Several schools 
offer graduate programs in marketing research, but many analysts complete degrees 
in other fields, such as statistics and marketing, and/or earn a master's degree in 
business administration (MBA). A master's degree is often required for leadership 
positions or positions that perform more technical research. 
Licenses, Certifications, and Registrations 
Certification is voluntary, but analysts may pursue certification to demonstrate 
a level of professional competency. The Marketing Research Association offers the 
Professional Researcher Certification (PRC) for market research analysts. Candidates 
qualify based on experience and knowledge; they must pass an exam, be a member of 
a professional organization, and have at least 3 years working in opinion and 
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Matter of MGKJ-, Inc. 
marketing research. Individuals must complete 20 hours of industry-related 
continuing education courses every 2 years to renew their certification. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Market Research Analysts, on the Internet at http://www.bls.gov/oohlbusiness-and-financiallmarket­
research-analysts.htm#tab-4 (last visited Feb. 24, 2016). 
When reviewing the Handbook, we must note that the Petitioner designated the proffered position 
under this occupational category at a Level I on the labor condition application (LCA).1 This 
designation is indicative of a comparatively low, entry-level position relative to others within the 
occupation and signifies that the Beneficiary is only expected to possess a basic understanding of the 
occupation and will perform routine tasks that require limited, if any, exercise of judgment. In 
accordance with DOL's explanatory information on wage levels, the Beneficiary will be closely 
supervised and his work closely monitored and reviewed for accuracy. Furthermore, he will receive 
specific instructions on required tasks and expected results. DOL guidance indicates that a Level I 
designation is appropriate for a research fellow, a worker in training, or an internship. Thus, based 
upon the Petitioner's designation of the proffered position as a Level I position (relative to others 
with the occupation) it does not appear that the Beneficiary will serve in a senior or leadership role 
or in a position that performs more technical research. 2 
The Handbook reports that market research analysts have degrees and backgrounds in a wide variety 
of disparate fields. That is, while the Handbook states that employees typically need a bachelor's 
1 
The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor (DOL) provides a 
description of the wage levels. A Level l wage rate is described by DOL as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic 
understanding of the occupation. These employees perform routine tasks that require limited, if any, 
exercise of judgment. The tasks provide experience and familiarization with the employer's methods, 
practices, and programs. The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific instructions on required tasks 
and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job 
offer is for a research fellow, a worker in training, or an internship are indicators that a Level l wage should 
be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ R 
evised _11_ 2009. pdf. 
2 The Petitioner's designation of this position as a Level l, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in 'a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
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Matter of MGKI-, Inc. 
degree in market research or a related field, it continues by specifying that many market research 
analysts have degrees in fields such as statistics, math, or computer science. According to the 
Handbook, other market research analysts have backgrounds in fields such as business 
administration, the social sciences, or communications. The Handbook identifies various courses as 
essential to this occupation, including statistics, research methods, and marketing. It further 
elucidates that courses in communications and social sciences (such as economics, psychology, and 
sociology) are also important. Therefore, although the Handbook indicates that market research 
analysts typically need an advanced degree, it also indicates that degrees and backgrounds in various 
fields are acceptable for jobs in this occupation- including computer science and the social sciences, 
as well as statistics and communications. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(1 )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties. 3 Section 
214(i)(l)(B) ofthe Act (emphasis added). 
The Handbook also states that "others have a background in business administration." Although a 
general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).4 
3 Whether read with the statutory "the" or the regulatory "a," both readings denote a singular "specialty." Section 
214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Still, we do not so narrowly interpret these provisions to exclude 
positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than 
one closely related specialty. This also includes even seemingly disparate specialties provided the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1 B specialty 
occupation visa. See, e.g., Tapis lnt'lv. INS, 94 F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. 
Supp.2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
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Matter of MGKI-, Inc. 
That is, we interpret the degree requirement at 8 C.P.R.§ 214.2(h)(4)(iii)(A) to require a degree in a 
specific specialty (or its equivalent) that is directly related to the proposed position. 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 I&N Dec. 558 (Comm'r 1988). Therefore, the Handbook's recognition that a general, 
non-specialty "background" in business administration· is sufficient for entry into the occupation 
strongly suggests that a bachelor's degree in a spec(fzc specialty is not normally the minimum entry 
requirement for this occupation. 
The narrative of the Handbook further reports that some employees obtain professional certification 
to demonstrate a level of professional competency. It continues by outlining the requirements for 
market research analysts to achieve the professional researcher certification (PRC), and states that 
candidates qualify based upon their experience and knowledge. According to the Handbook, the 
credential is granted by the Marketing Research Association to those who pass an exam and have at 
least three years of experience working in opinion and market research. 5 
We reviewed the Marketing Research Association's website, which confirms the Handbook's 
statement regarding the requirements for professional certification (i.e., passage of an exam and 
three years of relevant industry experience), and further specifies that the "Education" necessary to 
apply for professional certification is "12 industry-related education hours within the two preceding 
years." The Market Research Association website provides the following information about the 
Professional Researcher Certification program: 
The Professional Researcher Certification program (PRC) is designed to 
encourage the highest standards within the marketing, establish an objective measure 
of an individual's knowledge and proficiency and to encourage professional 
development. PRC is a powerful tool for individual researchers of all levels of work 
experience and education. Certification standards increate consumer understanding 
of research and foster premier professional standards in the profession. 
Market Res. Ass'n, http://www.marketingresearch.org/advance-career/prc (last visited Feb. 24, 
2016). 
5 The Marketing Research Association website states that the association was founded in 1957 and is the leading and 
largest association of opinion and marketing research professions. For additional infonnation, see 
http://www.marketingresearch.org/about (last visited Feb. 24, 20 16). 
Matter of MGKJ-, Inc. 
In the "frequently asked questions" section, the website further states: 
!d. 
The benefits of a Certification program are both industry-wide and individual. 
For the individual, it is a means of differentiating oneself, a "badge" of competence in 
the given areas and an assurance that the individual is current in knowledge and 
experience. For the profession/industry as a whole, it provides a vehicle for 
developing a pool of well-trained, competent marketing researchers, thereby 
improving both perceived and substantive standards. 
The Market Research Association emphasizes that the credentialing program encourages highest 
standards within the profession, establishes an objective measure of an individual's knowledge and 
proficiency and encourages professional development. According to the association's website, the 
credential provides an individual "a badge" of competence in the given areas and establishes that the 
individual is current in knowledge and experience. The narrative continues by stating that the 
credential provides a vehicle for developing a pool of well-trained, competent marketing 
researchers, thereby improving both perceived and substantive standards. The website does not 
indicate that the market research analyst positions have any particular academic requirements for 
entry, nor does it indicate that these positions require any particular level of education to be 
identified as qualified and possessing a level of expertise/competence. In fact, it states that PRC is 
"a powerful tool for individual researchers of all levels of work experience and education." 
Thus, the Handbook and the Market Research Association website do not support the claim that the 
occupational category "Market Research Analysts" is one for which normally the minimum 
requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its 
equivalent. Even if it did (which it does not), the Petitioner must provide evidence to support a 
finding that the particular position proffered would normally have such a minimum, specialty degree 
requirement or its equivalent. 
We further note that the Petitioner also submitted a letter dated February 26,2015, in support of its 
motion to reopen. In this letter, it states that "[e]very one employed at [the Petitioner] is highly 
qualified with either a Master's Degree in Science or an equivalent MBA degree. The company has 
also set a minimum eligibility requirements [sic] to hire new employee and will only consider either 
a Master's degree in Engineering/Science or equivalent of MBA." However, the Petitioner did not 
provide any evidence to support this claim. "[G]oing on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." In re 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
Therefore, while the Petitioner may have provided new facts in support of the motion to reopen, our 
review of the prior motion and supporting documents do not convince us that these facts were likely 
Matter of MGKI-, Inc. 
to change our prior decision on either the prior motion or the appeal as the new evidence is not 
sufficient to demonstrate that the proffered position is a specialty occupation. 
Finally, the Petitioner's argument that the proffered position is identical to the position that was 
described in the previously approved H -1 B petition is not persuasive. We note that the prior 
decision is not binding on USCIS. While 8 C.F.R. § 103.3(c) provides that our precedent decisions 
are binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. Moreover, if the previous nonimmigrant petition was approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the Director. We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g., Matter of Church Scientology Int'l, 19 I&N Dec. 
593, 597 (Comm'r 1988). It would be "absurd to suggest that [USCIS] or any agency must treat 
acknowledged errors as binding precedent." Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions, we would not be bound to follow the contradictory decision of a service center. See La. 
Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
The documents constituting this motion do not articulate how our decision misapplied any pertinent 
statutes, regulations, or precedent decisions based on the previous factual record. Accordingly, the 
Petitioner's motion to reconsider will be denied. 
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 ofthe 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 reconsider is denied. 
Cite as Matter of MGKI-, Inc., ID# 15589 (AAO Feb. 25, 2016)