dismissed H-1B Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
In Re : 8258076 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY . 1, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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 proffered position 
was not a specialty occupation, and we dismissed the Petitioner's appeal. The matter is again before 
us on a combined motion to reopen and 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 combined motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form I-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)(l). 
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). 
By regulation, the scope of a motion is limited to "the prior decision ." 8 C.F.R. § 103.5(a)(l)(i) . 
Therefore, the filing before us is not a motion to reopen and reconsider the denial of the petition or the 
dismissal of the appeal. Instead, the filing is a motion to reopen and 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. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner focuses on the Level I wage rate it designated on the certified labor condition 
application (LCA), and on the third specialty-occupation criterion of 8 C.F.R. § 214.2(h)4(iii)(A). 
Specifically, the Petitioner asserts that its Level I wage rate on the LCA was correct and submits 
additional documentation in support of its assertion. However, our previous decision dismissing the 
appeal was based on the Petitioner not establishing that the proffered position qualifies as a specialty 
occupation and not for the lack of an LCA corresponding to the petition. In other words, even if there 
were new facts that did establish that the Level I wage rate was correct on the LCA, those facts would 
not establish that the proffered position is a specialty occupation. 
In support of the third criterion, the Petitioner submits affidavits from its Vice President of Operations, 
Human Resources (HR) Manager, and Logistics Analyst II, documentation regarding! I 
College Career Fair, an excerpt from.__ _____ _.College website, a Project Charter Document, 
and the Petitioner's official job description for the proffered position. For the reasons below, we 
conclude that the Petitioner has not established new facts sufficient to satisfy the requirements to 
reopen. 
The third regulatory criterion involves an employer demonstrating that it normally reqmres a 
bachelor's degree in a specific specialty, or its equivalent, for the position. 
The affidavit from the Vice President of Operations discusses why the Petitioner created a logistics 
analyst position for the company. In addition, the affidavit states that there are two different logistics 
analyst positions: logistic analyst (which requires an associate degree) and logistic analyst II (which 
requires a bachelor's degree). Moreover, it provides a job description for a logistic analyst II. 
The HR manager affidavit also provides a job description for a logistic analyst II and asserts that three 
employees graduated froml I College "with International Transportation or a related 
and all of them performed the" logistic analyst II job duties. In addition, it discusses the Petitioner's 
new business process management system and explains why the Petitioner does not have any job 
postings or offer letters for the proffered position. 
The affidavit from the Logistic Analyst II states that she has a master's degree in international 
transportation management and has been with the Petitioner since January 2018 as a logistics analyst. 
Her job title changed to logistic analyst II in 2019. The affidavit also provides her job duties as a 
logistic analyst II. 
We have reviewed and considered the affidavits, along with the I I College documents 
and the Project Charter Document. However, the documents do not sufficiently establish that the 
Petitioner normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for 
the proffered position. For instance, as previously noted by the Director, the Petitioner's business was 
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established in 1997. Again, it did not provide the total number of people it has employed to serve in 
the proffered position. Consequently, it cannot be determined how representative the Petitioner's 
claim regarding three individuals is of the Petitioner's normal recruiting and hiring practices over a 
20-year period. 
Moreover, even if the Petitioner only hired individuals with a bachelor's degree in a specific specialty, 
or its equivalent, for the proffered position, the Petitioner has not established that the duties of the 
position proffered in this matter require a body of highly specialized knowledge and the attainment of 
a baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry 
into the occupation. 1 See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term 
"specialty occupation). The critical element is not the title of the position, or the fact that an employer 
has routinely insisted on certain educational standards, but whether performance of the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate or higher degree in the specific specialty, or its equivalent, as 
the minimum for entry into the occupation as required by section 214(i)(l) of the Act. We 
acknowledge the official job description for the proffered position; however, the Petitioner falls far 
short of establishing that the duties of the proffered position require a bachelor's degree in a specific 
specialty, or its equivalent. 
The record on motion does not include new facts that establish the Petitioner normally requires a 
bachelor's degree in a specific specialty for the proffered position, and that such a requirement, if any, 
is necessitated by the actual job duties. 
B. Motion to Reconsider 
On motion, the Petitioner asserts that our decision "was incorrect based on the evidence in the record 
at the time of the decision." Specifically, the Petitioner contends that the certified LCA corresponds 
to the petition and that it has demonstrated that it meets the third criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). However, the Petitioner's assertions do not specifically reference the basis upon 
which we reached our conclusion that it did not establish that the proffered position qualified as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
Accordingly, the Petitioner's arguments offered on motion do not provide a sufficient basis to 
reconsider the prior decision. 
1 To satisfy this criterion, the record must establish that the specific performance requirements of the position generated 
the recruiting and hiring history. As discussed in our prior decision, the Petitioner has not provided sufficient probative 
evidence establishing that the duties of the proffered position require the specific performance requirements ofa bachelor's 
degree in a specific discipline, or its equivalent. We must examine the actual employment requirements of the proffered 
position and, on the basis of that examination, determine whether the position qualifies as a specialty occupation. Sec 
generally Dcfcnsor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). If we were constrained to recognize a specialty 
occupation merely because a petitioner has an established practice of demanding certain educational requirements for the 
proffered position - and without consideration of how a beneficiary is to be specifically employed- then any beneficiary 
with a bachelor's degree in a specific specialty could be brought into the United States to perform non-specialty 
occupations, so long as the employer required all such employees to have baccalaureate or higher degrees. See id. 
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III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
the previous decision or otherwise established eligibility for the immigrant benefit sought. 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 reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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