dismissed H-1B Case: Marketing

(b)(6)
DATE: JUL 2 8 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Departml mt of Bomda nd Sl~curity 
U.S. Citizen ship and Immigration Services 
Administrative Appeals Oftice (AAO) 
20 Massachu setts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT# : 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section JOJ(a)(JS)(H)(i)(b) of the 
Immigration and Nationality Act , 8 U.S.C. § JJOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed is the non-precedent decision ofthe Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R . § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-2908) within 33 days of the date of this 
decision. The Form I-2908 web page (www.uscis.gov/i-290b) contains the latest information on fee , filing 
location, and other requirements. Please do not mail any motions directly to the AAO . 
T~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
I. BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
importer of natural products, with two employees, established in . In order to employ the 
beneficiary in what it designates as a marketing manager position, the petitioner seeks to classify 
her as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director denied the petition, concluding that the petitioner has not established that the proffered 
position qualifies as a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. The petitioner submitted both an appeal and a combined motion to reopen 
and reconsider to the Administrative Appeals Office (AAO). We reviewed the record of proceeding 
and determined it did not contain sufficient evidence to establish that the petitioner would employ 
the beneficiary in a specialty occupation position. Accordingly, we dismissed the appeal. The 
combined motion will also be dismissed. 1 
II. MOTION REQUIREMENTS 
For the reasons discussed below, we conclude that the motion does not merit 
either reopening or 
reconsideration . 
A. Overarching Requirement for Motions by a Petitioner 
The provlSlon 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 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. § 1 03.5(a)(2), "Requirements for motion to reopen," states: 
1 Since we dismissed the appeal, we are the office that rendered the last decision in this matter. Therefore, the 
authority to review the petitioner's motion rests with us. See 8 C.F.R. § 103.5(a)(l)(ii). (stating that the official 
with jurisdiction over a motion "is the official who made the latest decision in the proceeding"). 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
A motion to reopen must [(1)] 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 3 of the Form I-290B, which 
states: 2 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence. 
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 
ofCoelho , 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-
40 (lOth Cir. 2013). 
C. Requirements for Motions to Reconsider 
The regulation at 8 C.F.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 
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 3 of the Form I-290B, which 
states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions. 
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). 
2 The regulation at 8 C.F.R. § 103.2(a)(1) 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, such instructions are Incorporated into the regulations requiring its submission. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
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. 20 13). 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. 
III. DISCUSSION AND ANALYSIS 
The submission constituting the combined motion consists of the following: (1) the Form I-290B; 
(2) a brief submitted by counsel; and (3) copies of previously submitted documents. 
A. Dismissal of the Motion to Reopen 
A motion to reopen must state new facts and be supported by affidavits or documentary evidence. 
Upon review of the documents submitted, we observe that the petitioner does not state any new 
facts. Further, we observe that all documents submitted in support of this motion were previously 
available or already submitted. The documentation was considered prior to the issuance of the 
denial of the petition and dismissal of the appeal. As such, the petitioner has not established that the 
evidence submitted on this motion would change the outcome of this case if the proceeding were 
reopened. 
"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the 
interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS 
v. Abudu, 485 U.S. 94, 107 ( 1988). Motions for the reopening of immigration proceedings are 
disfavored for the same reasons as 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 (1988)). A party seeking to reopen a proceeding bears a "heavy burden" of proof. INS v. 
Abudu, 485 U.S. at 110. With the current motion, the petitioner and its counsel have not met that 
burden. Accordingly, the motion to reopen must be dismissed. 
B. Dismissal of the 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 a decision on an 
application or petition must, when filed, 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) (detailing the 
requirements for a motion to reconsider). 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 5 
The petitioner asserts that the proffered positon is a specialty occupation and cites a non-precedent 
AAO decision to support this assertion. However, counsel does not submit a copy of the cited 
decision with its brief and, as such, there is no evidence that the facts of the instant petition are 
analogous to those in the unpublished decision. More importantly, 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. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972) ). 
The documents constituting this motion do not articulate how 
our decision misapplied any pertinent 
statutes, regulations, or precedent decisions to the evidence of record when the decision was 
rendered. The petitioner has therefore not submitted any document that would meet the 
requirements of a motion to reconsider. Accordingly , the motion to reconsider must be dismissed. 
IV. 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 ofOtiend e, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. AccQrdingly, the combined motion will be 
dismissed , the proceedings will not be reopened or reconsidered , and our previous decision will not 
be disturbed . 
ORDER: The combined motion is dismissed.