dismissed H-1B Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF MGKI-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 21,2016 
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 extend 
the Beneficiary's temporary employment as a "logistics analyst" under the H-IB nonimmigrant 
classification. See Immigration and Nationality Act (the Act) section IOI(a)(l5)(H)(i)(b), 8 U.S.C. 
§ IIOI(a)(l5)(H)(i)(b). The H-IB 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, Vermont Service Center, denied the petition. The Director concluded that the 
proffered position is not a specialty occupation. The Petitioner appealed the Director's decision to 
our office and we dismissed the appeal. Subsequently, the Petitioner submitted a motion to reopen, 
which we denied. Then, the Petitioner submitted a motion to reconsider our denial of the motion to 
reopen, which we also denied. 
The matter is again before us on a motion to reopen and a motion to reconsider. In its motion, the 
Petitioner submits a brief and asserts that the Director erred in denying the petition and we erred in 
dismissing the appeal. 
We will deny the combined motion. 
I. LAW 
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 
Matter of MGKJ-, Inc. 
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: 
A motion to reopen must [(!)] 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 4 of the Form I-290B, which states: 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence demonstrating eligibility at the time the 
underlying petition ... was filed. 1 
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 (I Oth Cir. 20 13). 
C. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § I 03.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(I)] 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 The regulation at 8 C.F.R. § 103.2(a)(!) 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." 
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Matter of MGKI-, Inc. 
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 l&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 of 0-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 (I st 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 
For the reasons discussed below, the combined motion will be denied. 
The issue here is limited to whether our decision dated February 25, 2016, to deny the motion to 
reconsider was incorrect2 In that decision, we concluded that the Petitioner did not articulate how 
our decision to deny the Petitioner's prior motion to reopen misapplied any pertinent statutes, 
regulations, or precedent decisions based on the previous factual record. 
In support of the combined motion before us, the Petitioner submits a brief with supporting evidence 
explaining why it believes the proffered position qualifies as a specialty occupation. The Petitioner 
has not, however, presented any evidence that could be considered "new facts." For instance, the job 
duties presented in support of this motion are the same as those previously listed. Further, the 
documents that the Petitioner now submits as new evidence do not change the result of our decision 
to deny the prior motion to reconsider. For example, the Petitioner submits its profit and loss 
statement, revenue forecast and industry analysis, a new bill of sale and purchase contract, and 
photographs and reports of material procured before and after the Beneficiary's employment, stating 
that the proffered position is primarily that of a market research analyst. While the documents may 
provide further information regarding the Petitioner's business, they do not establish that the 
proffered position qualifies as a specialty occupation. Specifically, we noted in denying the motion 
to reconsider, that even if we were to assume that the proffered position is a market research analyst 
position, the Petitioner has not established that the particular position is a specialty occupation. 
2 The scope of this motion cannot be expanded to consider whether the Director's decision to deny the petition on 
specialty occupation grounds was correct or to consider our initial decision to dismiss the appeal or subsequent decisions 
to deny the prior motions. 
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Matter of MGKI-, Inc. 
The Petitioner further requests that we consider the Beneficiary's bilingual abilities, his master's 
degree in business administration (MBA) and relevant work experience. However, the test to 
establish a position as a specialty occupation is not the education or experience of a proposed 
beneficiary, but whether the position itself requires at least a bachelor's degree in a specific 
specialty, or its equivalent. 
As the Petitioner has not provided new facts that possess sufficient significance to change the result 
of our prior decision on February 25, 2016, to deny the motion to reconsider, the Petitioner's motion 
does not satisfy the requirements of a motion to reopen. The motion to reopen will be denied. 
Nor does the Petitioner's motion 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 l-290B. Here, the Petitioner did not articulate how our February 
25, 2016, decision to deny the prior motion to reconsider was based on an incorrect application of 
law or policy. Accordingly, the Petitioner's motion to reconsider will also be denied. 
Ill. CONCLUSION 
The combined motion does not meet the requirements for a motion to reopen or a motion to 
reconsider. Therefore, the combined motion will be denied. 
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)(1)(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 o[Otiende, 26 l&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be denied, 
the proceedings will not be reopened or reconsidered, and our previous decision will not be 
disturbed. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter o[MGKI-, Inc., ID# 18059 (AAO July 21, 2016) 
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