dismissed H-1B Case: Logistics

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MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 27,2016 
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-lB nonimmigrant 
classification. 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 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. Thereafter, the Petitioner submitted a combined motion to reopen and 
a motion to reconsider our denial ofthe motion to reconsider, which we also denied. 
The matter is again before us on a motion to reconsider. In its motion, the Petitioner submits a brief 
and asserts that the Director erred in denying the petition and that we erred in dismissing the appeal 
· and in denying its previous motions. 
We will deny the motion to reconsider. 
I. MOTION REQUIREMENTS 
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 U.S. 
Citizenship and Immigration Services (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." 
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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 
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.F.R. § 103.5(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 tp 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. 
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 ofO-S-G-, 24 I&N Dec. at 60. 
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II. DISCUSSION 
For the reasons discussed below, the motion to reconsider will be denied. 
The issue here is limited to whether our decision dated July 21, 2016, to deny the combined motion 
to reopen and reconsider, was incorrect.1 In that decision, we concluded that the Petitioner did not 
'articulate how our decision to deny the Petitioner's prior motion to reconsider misapplied any 
pertinent statutes, regulations, or precedent decisions based on the previous factual record. 
In support of the motion to reconsider currently before us, the Petitioner submits a brief with 
supporting evidence explaining why it believes the proffered position qualifies as a specialty 
occupation. We note that the supporting documentation accompanying the motion was previously 
submitted, and was determined to be insufficient to establish eligibility for the benefit sought in this 
matter. 
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 I-290B. Here, the Petitioner did not articulate how our July 21 , 
2016, decision to deny the prior combined motion was based on an incorrect application of law or 
policy. Accordingly , the Petitioner's motion to reconsider will be denied. 
III. CONCLUSION 
The Petitioner's submission does not meet the requirements for a motion to reconsider. Therefore, 
the motion to reconsider 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)(l)(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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the motion to reconsider will be 
denied, the proceedings will not be reconsidered, and our previous decision will not be disturbed. 
1 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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ORDER: The motion to reconsider is denied. 
Cite as Matter of , ID# 101933 (AAO Oct. 27, 2016) 
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