dismissed H-1B Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 5353993 
Motion on Administrative Appeals Office Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 4, 2020 
The Petitioner seeks to extend the Beneficiary's temporary employment as a "mechanical engineer" 
under the H-1 B 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 California Service Center Director denied the petition, concluding that the Petitioner had not 
demonstrated that the proffered position qualifies as a specialty occupation . The Petitioner filed an 
appeal which we dismissed. Subsequently, the Petitioner filed a motion which we denied. The matter 
is now before us on a second motion to reopen and motion to reconsider. 
In its combined motion, the Petitioner provides additional documentation (including documentary 
evidence in support of an ineffective assistance of counsel 1 claim), asserts that it has provided 
sufficient evidence to establish that the proffered position is a specialty occupation, and requests that 
we exercise favorable discretion and approve the petition. We will dismiss the motions. 
I. LEGAL FRAMEWORK 
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) establish that the decision was based on an incorrect application of law or policy; 
and (3) establish that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 8 C.F.R. § 103.5(a)(3). 
1 I I initially represented the Petitioner and filed the H-lB petition. I ! was the Petitioner's 
representative on appeal. The Petitioner's representative on the first motion wa~ I A fourth attorney, current 
counsel, now represents the Petitioner. The Petitioner's claim of ineffective assistance of counsel is againsd I 
(initial attorney). 
The Board of Immigration Appeals (the Board) established a framework for asserting and assessing 
claims of ineffective assistance of counsel. See Matter o_f Lozada, 19 I&N Dec. 63 7 (BIA 1988), aff'd, 
857 F.2d 10 (1st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the petitioner attesting to the relevant facts. The affidavit should provide 
a detailed description of the agreement with former counsel (i.e., the specific actions that 
counsel agreed to take), the specific actions actually taken by former counsel, and any 
representations that former counsel made about his or her actions. 
• Evidence that the petitioner informed former counsel of the allegation of ineffective assistance 
and was given an opportunity to respond. Any response by prior counsel ( or report of former 
counsel's failure or refusal to respond) should be submitted with the claim. 
• If the petitioner asserts that the handling of the case violated former counsel's ethical or legal 
responsibilities, evidence that the petitioner filed a complaint with the appropriate disciplinary 
authorities ( e.g., with a state bar association) or an explanation why the petitioner did not file 
a complaint. 
Id. at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate the ineffective assistance claim and to deter meritless claims. Id. 
Allowing former counsel to present his or her version of events discourages baseless allegations, and 
the requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with his or her client in disparaging the quality of the representation. 
We may deny a claim of ineffective assistance if any of the Lozada threshold documentary 
requirements are not met. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). However, we 
may permit an ineffective assistance claim to go forward when there is substantial compliance with 
Lozada such that the purpose of Lozada is "fully served by other means." Id. at 526. For example, if 
we determine that former counsel's ineffective assistance is plain on the face of the administrative 
record. Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000).] 
Second, if the petitioner satisfies these threshold documentary requirements, it must also show that 
former counsel's assistance was so deficient that it was prejudiced by the performance. 2 Specifically, 
the petitioner must show that there is a reasonable probability that the outcome would have been 
different without former counsel's mistakes, 3 and that it had at least a plausible ground for relief 4 
There is no prejudice if the adverse decision would have been issued even without former counsel's 
errors. See, e.g., Minhas v. Gonzales, 236 Fed. Appx. 981 (5th Cir. 2007). 
2 Lozada at 632. 
3 Yu Tian Liv. United States, 648 F.3d 524, 527 (7th Cir. 2011 ); Delhaye v. Holder, 338 Fed. Appx. 568, 570 (9th Cir. 
2009). 
4 See Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). 
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II. ANALYSIS 
In our initial dismissal of the appeal we pointed out two deficiencies in the record: (1) what appeared 
to be a non-corresponding labor condition application (LCA); 5 and, (2) insufficient evidence 
demonstrating the nature and duties of the proffered position. In the first motion, the Petitioner 
submitted a new certified LCA, changing the occupation of the proposed position from an 
"Engineering Technicians, Except Drafters, All Other" occupation, Standard Occupational 
Classification (SOC) code 17-3029, at a Level I wage, to a "Mechanical Engineer" occupation 
corresponding to the SOC code 17-2141 at a Level I wage. The Petitioner asserted that an error was 
made when the initial LCA was created by designating the wrong occupation and SOC code, and thus 
the new LCA should be accepted. The Petitioner also claimed that the position, as described, satisfied 
the regulatory definition of specialty occupation. In our decision on the first motion, we observed that 
a new LCA constitutes a material change to the terms and conditions of H-lB employment which 
requires a new amended petition. 6 We concluded that an LCA materially changing the occupational 
category which was certified after the denial of a petition could not be used to establish eligibility for 
the denied petition. We also concluded that the record did not include evidence of: the correlation 
between the proposed work and the need for a particular level of knowledge in a specific specialty; 
and an elaboration on the complexity, uniqueness, or specialization of the tasks of the proposed 
position. 
A. Motion to Reopen 
On this second motion the Petitioner asserts that the initial LCA submitted in support of the petition 
was due to ineffective assistance of counsel and recites the standards set out in Lozada. However, the 
new evidence submitted in support of this claim is insufficient to establish that the Petitioner complied 
with the Lozada requirements. The Petitioner, in an affidavit in support of this second motion, states 
that the initial attorney in this matter used the wrong SOC code and incorrectly designated the 
proffered position on the LCA as an engineering technician and not a mechanical engineer. 7 The 
Petitioner, however, does not provide a detailed description of its agreement with the initial attorney. 
Rather, the Petitioner indicates generally that the initial attorney had represented it in immigration 
matters previously and had filed a 2014 H-lB petition for the Beneficiary which was approved, and 
that the Petitioner 'just applied for continuation of their working visa." The record does not include 
further details of the agreement entered into between the Petitioner and the initial attorney in relation 
to the filing of the instant H-1 B petition. 
Next, the record includes only the photocopies of envelopes for the letters the Petitioner claims were 
mailed to the initial attorney and to thel I Grievance Committee. The record does not include 
5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB worker the higher of either 
the prevailing wage for the occupational classification in the '"area of employment" or the actual wage paid by the employer 
to other employees with similar experience and qualifications who are performing the same services. Section 2 l 2(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
6 The Petitioner appears to have filed a Form T-129, Petition for Nonimmigrant Worker, for new employment for this 
Beneficiary which was approved on February 26, 2018 for a validity period to February 9, 2021. 
7 The Petitioner also states that it had given the Beneficiary a raise in salary after his three years of work and that the salary 
was above the minimum wage; but that the initial attorney still used the minimum wage on the submitted LCA. The record 
does not include evidence corroborating the Beneficiary's actual salary, including any increases in wage level. We also 
note that both the initial LCA and the new LCA identify the proffered position as requiring only a level I wage. 
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a copy of the letter informing initial counsel of the Lozada claim and does not include a copy of the 
actual complaint the Petitioner claims was filed. Envelopes alone are not evidence that the Petitioner 
informed the initial attorney of the allegation of their ineffective assistance. Nor is an envelope 
evidence that the Petitioner filed a complaint with the appropriate disciplinary authorities. The record 
on motion is insufficient to establish that the Petitioner substantially complied with the requirements 
of Lozada. 
We observe here that ineffective assistance of counsel is also not plain on the face of the administrative 
record. That is, because the record included only a general and vague description of the proposed 
duties, it was not possible to ascertain exactly what work the Petitioner expected of the Beneficiary. 
Without a detailed description establishing the Beneficiary's role and level of responsibility within the 
Petitioner's operations, the substantive nature of the proffered position was not established. As the 
totality of the record did not convey a clear understanding of the proposed position, we reviewed the 
position within the context of the certified LCA submitted in support of the petition. 8 We also noted 
that even if we could consider that the initial petition was filed for a "Mechanical Engineer" 
occupation, the record included only a generic description of the proposed duties which was 
insufficient to establish H-lB eligibility. 
The Petitioner also submitted a revised description of duties in support of this motion to reopen. The 
Petitioner, in the affidavit in support of the instant motion and its Lozada claim, does not assert that 
the initial attorney provided an inaccurate or insufficient description of the proposed duties. Moreover, 
the revised description is similar to the initial description, although the revision now includes courses 
the Petitioner claims are related to each duty. The revision of duties now also includes an added 
requirement of at least three years of experience along with the academic requirement as necessary to 
perform the proffered position. The requirement that the proposed position requires three years of 
experience is a material change to the initial description and also conflicts with the Petitioner's claim 
that the new LCA supports the position described. 9 Even if we reviewed the new description of duties 
and requirements as new information, this information creates further ambiguity in the record 
regarding the nature of the proposed position and also demonstrates that the new certified LCA does 
not support the petition. 
We also reviewed the opinion submitted to establish the Beneficiary's qualifications, the industry 
reference letters, a councilman's letter, the Petitioner's company profile, and the Beneficiary's work 
product. However, these documents are either not relevant to establishing the nature of the proposed 
8 A petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied fi-om the time 
of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b )(1 ). A visa petition may not be approved at a future 
date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire COip., 
17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). 
9 As noted above, the new LCA designates the proffered position as requiring only a Level I wage for a "Mechanical 
Engineer" occupation with an SOC code of 17-2141. A "Mechanical Engineer" occupation which has a Specialized 
Vocational Preparation rating of 7 < 8, as cited within the Department of Labor's Occupational Information Network 
summary report and which requires more than two years and up to three years of experience requires a one-level increase 
in the wage level. See https://www.onetonline.org/link/summary/17-2141.00; U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
athttp://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ I I_ 2009 .pdf 
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position 10 or are not sufficient to establish the proffered position as a mechanical engineer, rather than 
a technician. The documents also do not assist in establishing that either certified LCA supports the 
petition. The record on motion does not include the necessary detail and probative, consistent evidence 
to clarify and establish that the proposed position was a specialty occupation when the petition was 
filed and does not establish that the certified LCA(s) correspond to the petition. The record is 
insufficient to grant the motion to reopen. 
B. Motion to Reconsider 
The Petitioner does not assert that the prior decisions were based on an incorrect application of law or 
policy, but requests that we grant the motion to reconsider and approve the petition as a matter of 
discretion. However, a petition for this nonimmigrant classification may only be approved when the 
record satisfies the statutory and regulatory criteria. Here, the Petitioner has not established that our 
previous decision was based on an incorrect application of law or policy. 11 For the reasons listed 
above as well as the reasons identified in our previous decisions, the Petitioner has not shown proper 
cause to reconsider the previous decision and has not otherwise established eligibility for the 
immigrant benefit sought. 
III. CONCLUSION 
The Petitioner has not established proper cause to reopen this matter based on the new documents 
submitted and has not shown proper cause to reconsider the previous decision. The Petitioner has not 
established eligibility for the benefit sought. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
10 A beneficiary's credentials to perform a particular job are relevant only when the job is found to be a specialty 
occupation. As discussed in this decision, the record is insufficient to establish that the proffered position requires a 
baccalaureate or higher degree in a specific specialty, or its equivalent. Accordingly, the information regarding the 
Beneficiary's qualifications is not a basis for reopening the matter on the issue of specialty occupation. 
11 Even if we were to consider the Petitioner's Lozada claim - that the initially submitted LCA was incorrect due to 
counsel's error, the Petitioner has not established that the proffered position is a specialty occupation and that the new 
LCA corresponds to and supports the petition. 
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