dismissed H-1B Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 22534851 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 12, 2022 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-IB nonimmigrant 
classification for specialty occupations . See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(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 Form 1-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation. We dismissed the Petitioner's appeal affirming the Director's decision. The 
Petitioner has since filed six consecutive combined motions to reopen and reconsider, and we have 
dismissed each motion. The matter is now before us on a seventh combined motion to reopen and 
reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe, 25 l&N 
Dec. 369, 375 (AAO 2010). Upon review, we will dismiss the motions. 
I. LAW 
A motion to reopen must state new facts to be proved and be supported by affidavits or other evidence. 
8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish that our decision was based on an 
incorrect application of law or United States Citizenship and Immigration Services (USCIS) policy 
and that the decision was incorrect based on the evidence in the record of proceedings at the time of 
the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements and 
demonstrates eligibility for the benefit sought. 
The review of any motion is narrowly limited to the basis for the prior adverse decision. Accordingly, 
we examine any new arguments to the extent that they pertain to our dismissing its sixth motion to 
reopen, and whether we erred in determining that the Petitioner did not establish that we incorrectly 
applied law or policy in dismissing the sixth motion to reconsider. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner submits a brief and additional evidence. The Petitioner states on motion that 
we should review all evidence, including evidence submitted in prior motions to provide the Petitioner 
with a fair opportunity to develop and present evidence and legal arguments. 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 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. 
On motion, the Petitioner contends that the previous attorney who filed the H-lB pet1t10n was 
negligent by submitting a labor condition application (LCA) with incorrect information about the job 
offered and the prevailing wage. As noted in several of our prior decisions, the record shows that the 
Petitioner has made similar claims in prior motions, and we have sufficiently addressed those claims 
in prior decisions. As noted repeatedly, the Petitioner has submitted three iterations of an LCA to 
demonstrate its intent when filing the petition. The first LCA is for an "Engineering Technicians, 
Except Drafters, All Others" occupation, SOC code 17-3029 at a level I wage. The second LCA was 
submitted with the Petitioner's first motion and certified after the filing of the petition in August 2018, 1 
designated the proffered position as corresponding most closely to the "Mechanical Engineers" 
occupation, SOC code 1 7-2141 at a level I wage. The third LCA 2 the Petitioner claims is relevant to 
demonstrating its intent is an LCA which identifies the job title as a junior mechanical engineer 
corresponding to a "Mechanical Engineers" occupation, SOC code 17-2141 at a level III wage. Thus, 
in addition to the Petitioner's initial attestation that the proffered position is an "Engineering 
Technicians, Except Drafters, All Others" occupation, SOC code 17-3029 at a level I wage, the 
Petitioner's subsequent inconsistent LCAs do not consistently demonstrate the Petitioner's intent. 
Based on the subsequent inconsistent iterations of an LCA for the proffered position, the Petitioner's 
statement that a correct LCA would have been submitted but for the initial attorney's gross negligence 
is not in accord with the evidence in the record. 
The motion revises the descriptions of the proposed pos1t10n, makes material changes to the 
requirements to perform the position, and offers different iterations of an LCA that might support the 
petition. On motion, the Petitioner states that the revised job descriptions do not change the record 
but instead correct an error made by previous counsel. However, as noted in prior decisions, the 
changes did not clarify the record but instead raised questions regarding the validity of the position 
due to several unresolved inconsistencies. 
1 An LCA that changes the occupational category for a proffered position is a material change and cannot be used as a 
basis to establish eligibility when the petition was filed. 
2 This LCA provided on this fifth motion is an LCA the Petitioner claims was submitted in support of an H-IB petition 
filed by a different but related entity on behalf of the Beneficiary and which was approved. This LCA is neither relevant 
nor new evidence. 
2 
On motion, the Petitioner references an evaluation froml I professor from the 
Department of Electrical Engineering and Computer Science atl I University, concluding 
that the duties to perform the position of mechanical engineer for the Petitioner are specialized and 
require the theoretical and practical application of a body of highly specialized knowledge. The 
evaluation does not discuss the inconsistencies in the record regarding the proffered position as 
discussed at length in our prior decisions. The evaluation does not overcome the concerns outlined in 
the appeal and motion decisions. 
With regard to the circumstances at hand, the Petitioner has been issued a detailed appellate decision 
specifically addressing matters concerning the Petitioner's statutory eligibility. That decision was 
followed by a series of motions, all of which were dismissed after careful review of the documents 
submitted on motion. Here, the Petitioner once again reiterates arguments that were addressed and 
deemed to be insufficient. Accordingly, the Petitioner has not shown proper cause for reopening the 
petition. 
B. Motion to Reconsider 
As in our prior decision, we stress again that in order to have established merit for reconsideration of 
our latest decision the petitioner must both state the reasons why the petitioner believes the most recent 
decision was based on an incorrect application of law or policy; and specifically cite laws, regulations, 
precedent decisions, and/or binding policies that the petitioner believed we misapplied in our prior 
decision. 
As we noted in our prior decision, by regulation, the scope of a motion is limited to "the prior 
decision." 8 C.F.R. § 103.5(a)(l)(i). In this case, the prior decision at issue is our decision dated 
March 14, 2022. In order to prevail in a motion to reconsider, the Petitioner cannot merely disagree 
with our conclusions, but rather it must demonstrate how we erred as a matter of law or policy in our 
immediate prior decision. See Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (finding that a 
motion to reconsider is not a process by which the party may submit in essence, the same brief and 
seek reconsideration by generally alleging error in the prior decision.) 
Accordingly, although we acknowledge that the Petitioner submits a brief and evidence, we determine 
that the Petitioner does not directly address the conclusions we reached in our immediate prior decision 
or provide reasons for reconsideration of those conclusions. Likewise, the brief in support of the 
current motion also lacks any cogent argument as to how we misapplied the law or USCIS policy in 
dismissing the prior motion to reconsider. 
In light of the above, we conclude that this motion does not meet all the requirements of a motion to 
reconsider and must therefore be dismissed pursuant to 8 C.F.R. § 103.5(a)(4). 
III. CONCLUSION 
In this matter, the Petitioner has not overcome our prior decision or shown proper cause to reopen or 
reconsider this matter. 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. 
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ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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