dismissed H-1B Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 11121259 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 21, 2020 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-1 B nonirnmigrant 
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-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 California Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position qualifies as a specialty occupation. As part of her decision, 
the Director discussed the Petitioner's submission of a certified labor condition application (LCA) for 
the standard occupational classification (SOC) code for "Engineering Technicians, Except Drafters, 
All Other." 1 We dismissed the Petitioner ' s appeal, which made no mention of the SOC code listed on 
the LCA. 2 The Petitioner filed a subsequent motion to reopen and reconsider, which addressed the 
SOC code for the first time and contained a new LCA for the SOC code for "Mechanical Engineers" 
at a Level I wage. We dismissed that motion to reopen and motion to reconsider and the subsequent 
one, which claimed for the first time that the Petitioner's initial counsel was ineffective. 3 The matter 
is again before us on a motion to reopen and motion to 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 motions. 
I. ANALYSIS 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § 103.5(a)(l)(i). The 
filing before us is not a motion to reopen and reconsider the denial of the petition. Instead, it is a 
motion to reopen and reconsider our most recent decision. Therefore, we cannot consider new 
1 Notably , the Petitioner signed the LCA, "attest [ing] that the information and labor condition statements provided are true 
and accurate ." 
2 The Petitioner has changed counsel for each of its filings. 
3 See Matter ofLozada, 19 I&N Dec. 637 (BIA 1988), ajf'd 857 F. 2d 10 (1st Cir. 1988). 
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). 
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. 
Our most recent decision ultimately concluded that the Petitioner had not met the threshold 
documentary requirements for asserting a claim of ineffective assistance of counsel. We also 
discussed the second LCA, certified after the date of the initial filing, and explained that even if the 
Petitioner had met the ineffective assistance of counsel threshold and we were to consider the newly 
certified LCA, the petition would still not be approvable because the new LCA does not support and 
correspond to the petition. 4 Specifically, we explained that the Petitioner's inclusion of an experience 
requirement in its new job description constituted a material change and that the Level I wage did not 
accurately reflect that requirement. 5 We also discussed the Petitioner's failure to establish that the 
proffered position qualifies as a specialty occupation. 
On motion, the Petitioner asserts, in part, that our most recent decision "erroneously pointed out that 
the revision of duties now 'also includes an added requirement of at least three years of experience 
4 While the U.S. Depart of Labor (DOL) is the agency that certifies LCA applications before they are submitted to USCIS, 
DOL regulations note that the Department of Homeland Secmity (DHS) (i.e., its immigration benefits branch, USCIS) is 
the department responsible for determining whether the content of an LCA filed for a particular Form I-129 actually 
supports that petition. See 20 C.F.R. § 655.705(6), which states, in pertinent part (emphasis added): 
For H-IB visas ... DHS accepts the employer's petition (DHS Form 1-129) with the DOL-certified LCA 
attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with 
the petition, whether the occupation named in the [LCA] is a specialty occupation or whether the individual is a 
fashion model of distinguished merit and ability, and whether the qualifications of the nonimmigrant meet the 
statutory requirements for H-lB visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports the H-IB petition filed 
on behalf of the Beneficiary. 
5 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov 
/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf 
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along with the academic requirement as necessary to perform the proffered position"' and that "[t]here 
is nothing in the record that the petitioner requires the beneficiaiy to have three years of experience." 
However, as we discussed above and in our previous decision, according to the updated job description 
for the position of mechanical engineer, which was signed by the president and owner of the company 
on March 18, 2019, the position's requirements are a "Bachelor's Degree or above in Mechanical 
Engineering or [a] related major; At least 3 years related experience." 
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 oflmmigration 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 I&N Dec. 399, 402 (BIA 1991). 
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 I&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 novo 
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 I&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, 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 reconsider. 
II. CONCLUSION 
In this matter, the Petitioner has not overcome our prior decision or shown proper cause to reopen or 
reconsider this matter. Further, we note that to merit reopening or reconsideration, a petitioner must meet 
the formal filing requirements (such as, 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). 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. 
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. § 13 61. The Petitioner has not met that burden. 
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ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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