dismissed H-1B Case: Market Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 10819885 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-1B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 Petitioner did not 
establish that the proffered position qualified as a specialty occupation, and we dismissed the 
Petitioner's appeal.1 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. ANALYSIS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
submission of a properly completed Form 1-290B, 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). The regulation at 8 C.F.R. 
§ 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the 
validity of the unfavorable decision has been or is the subject of any judicial proceeding." In this matter, 
the motions do not contain the required statement. Per the regulation at 8 C.F.R. § 103.5(a)(4), because 
the motions do not meet the applicable requirements, they must be dismissed. 
1 While not a basis for our decisions or the Director's, we would be remiss if we did not note that even if the Petitioner 
were to establish that the position qualifies as a specialty occupation, and it has not, the record does not establish that the 
Beneficiary, who holds a bachelor of science degree in business administration and an associate degree in applied science, 
meets the Petitioner's claimed requirements of a bachelor's degree in marketing, economics, or a related field. Further, 
we note that the Petitioner's website at https:A !(last accessed Aug. 25, 2020) has a job posting for 
a market research analyst which indicates that the minimum education requirement for the position is "a Bachelor's degree 
in Marketing, Business, Statistics, or other quantitative field." This raises questions as to whether the Petitioner provided 
accurate information regarding its actual minimum education requirement. 
Further, by regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. 
§ 103.5(a)(1)(i). Therefore, the filing before us is not a motion to reopen and reconsider the denial of 
the petition. 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. 
A. Motion to Reopen 
A motion to reopen must state the new facts to be provided and be supported by affidavits or other 
documentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain meaning of "new," a new fact is 
found to be evidence that was not available and could not have been discovered or presented in the 
previous proceeding. 2 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314,323, (1992) (citing INS v. Abudu, 485 U.S. 94, 108 (1988)). "There is a strong 
public interest in bringing litigation to a close as promptly as is consistent with the interest in giving 
the adversaries a fair opportunity to develop and present their respective cases." INS v. Abudu, 485 at 
107. Based on its discretion, "[T]he [USCIS] has some latitude in deciding when to reopen a case. 
[USCIS] should have the right to be restrictive. Granting such motions too freely will permit endless 
delay of deportation by aliens creative and fertile enough to continuously produce new and material 
facts sufficient to establish a prima facie case." Id. at 108. The result also needlessly wastes the time 
and efforts of the triers of fact who must attend to the filing requests. Id. A party seeking to reopen a 
proceeding bears a "heavy burden." Id. at 110. 
Although the Petitioner checked the box for a combined motion to reopen and motion to reconsider, 
the Petitioner's brief does not address any grounds for a motion to reopen, and thus, we will limit our 
discussion to its motion to reconsider. 3 
B. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
USCIS policy. 8 C.F.R. § 103.5(a)(3). The Board of Immigration Appeals (BIA) generally provides 
that a motion to reconsider asserts that at the time of the previous decision, an error was made. It 
questions the decision for alleged errors in appraising the facts and the law. The very nature of a 
motion to reconsider is that the original decision was defective in some regard. See Matter of Cerna, 
20 l&N Dec. 399, 402 (BIA 1991). 
2 The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found, 
or learned <new evidence> .... " Webster's II New Riverside University Dictionary 792 (1984) (Emphasis in 
original.) 
3 The Petitioner did submit a copy of Appendix A to the Preamble-Professional Recruitment Occupations-Education and 
Training Categories by O*NET - SOC Occupation. However, not only does this not qualify as new evidence, but it does 
not establish that the occupation of market research analyst qualifies as a specialty occupation for the same reasons 
explained by the Director in her discussion of the deficiencies of O*NET under the first criterion. 
2 
A motion to reconsider cannot 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, 220 (BIA 1990, 1991). Rather, the "additional 
legal arguments" that may be raised in a motion to reconsider should flow from new law or a de nova 
legal determination reached in its decision that could not have been addressed by the party. Further, a 
motion to reconsider is not a process by which a party may submit, in essence, the same brief presented 
on appeal and seek reconsideration by generally alleging error in the prior decision. Matter of O-S-G-, 
24 l&N Dec. 56, 58 (BIA 2006). Instead, the moving party must specify the factual and legal issues 
raised on appeal that were decided in error or overlooked in the initial decision or must show how a 
change in law materially affects the prior decision. Id. at 60. 
Here, not only does the Petitioner rely on two district court cases that were decided prior to the filing 
of the initial petition, but it failed to explain why they were not addressed in any of its previous 
submissions, including on appeal. Even if we were to consider the cases, we do not find them 
persuasive in this matter. 
In Raj and Co. v. USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 2015), the court concluded that the 
employer met the first criterion. We must note, however, that the court stated that "[t]he first 
regulatory criterion requires the agency to examine the generic position requirements of a market 
research analyst in order to determine whether a specific bachelor's degree or its equivalent is a 
minimum requirement for entry into the profession." Thus, the decision misstates the regulatory 
requirement. That is, the first criterion requires the petitioner to establish that a baccalaureate or higher 
degree (in a specific specialty) or its equivalent is normally the minimum requirement for entry into 
the particular position. 4 
Consequently, if the court meant to suggest that any position classified under the occupational 
category "Market Research Analysts" would, as it stated, "come within the first qualifying criteria" -
we must disagree. 5 The occupational category designated by a petitioner is considered as an aspect in 
establishing the general tasks and responsibilities of a proffered position, and USCIS regularly reviews 
the Handbook on the duties and educational requirements of the wide variety of occupations that it 
4 The Petitioner specifically points to the section of this decision that cites to Tap is I nt'I v. Immigration and Naturalization 
Service, 94 F. Supp. 2d 172 (D. Mass. 2000). We note that we agree with the district court judge in Tap is, that in satisfying 
the specialty occupation requirements, both the Act and the regulations require a bachelor's degree in a specific specialty, 
or its equivalent, and that this language indicates that the degree does not have to be a degree in a single specific 
specialty. 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. Section 214{i){l){B) of the Act (emphasis added). Moreover, we also agree that, if the requirements 
to perform the duties and job responsibilities of a proffered position are a combination of a general bachelor's degree and 
experience such that the standards at both section 214{i){l){A) and (B) of the Act have been satisfied, then the proffered 
position may qualify as a specialty occupation. 
5 In Raj, we observe that the court did not address the section of the Handbook indicating that there are no specific degree 
requirements to obtain the Professional Researcher Certification credential - and therefore to work as a market research 
analyst. 
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addresses. However, to satisfy the first criterion, the burden of proof remains on the petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a 
minimum, specialty degree requirement or its equivalent for entry. 
The Petitioner also cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012). 
The court's decision in that matter appears to have been based largely on the many factual errors made 
by the Director in the decision denying the petition. We also note that the Director's decision was not 
appealed to us. Based on the district court's conclusions and description of the record, if that matter 
had first been appealed through the available administrative process, we may very well have remanded 
the matter to the service center for a new decision for many of the same reasons articulated by the 
district court if these errors could not have been remedied by us in our de nova review of the matter. 
In contrast to the broad precedential authority of the case law of a United States circuit court, we are 
not bound to follow the published decision of a United States district court in matters arising even 
within the same district. See Matter of K-S-, 20 l&N Dec. 715, 719-20 (BIA 1993). Although the 
reasoning underlying a district judge's decision will be given due consideration when it is properly 
before us, the analysis does not have to be followed as a matter of law. Id. 
11. 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 motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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