dismissed H-1B Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-U-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 13, 2015 
MOTION OF ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a physician's office, seeks to temporarily employ the Beneficiary as a "nurse 
practitioner" under the H -1 B nonimmigrant classification. See Immigration and Nationality Act (the 
Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service 
Center, denied the petition. The Petitioner appealed the denial to the Administrative Appeals Office 
(AAO), which we dismissed. The matter is now before us on a combined motion to reopen and 
reconsider. The combined motion will be denied. 
We dismissed the appeal, concluding that the evidence of record did not establish that the Petitioner 
is exempt from the Fiscal Year 2014 (FY14) H-1B cap pursuant to section 214(g)(5)(A) of the Act, 
8 U.S.C. § 1184(g)(5)(A). More specifically, we determined that the Petitioner had not 
demonstrated its non-profit status, and that it was related to or affiliated with an institution of higher 
education. 
On motion, the Petitioner states, in pertinent part: 
The AAO decision correctly notes that the governing statute 8 U.S.C. 
§ 1184(g)( 5)(A) contains no definitions for determining if an employer qualifies as a 
"related or affiliated nonprofit entity" of an institution of higher education under 20 
U.S.C. §lOOl(a). 
We therefore believe that the widest possible latitude be given in determining 
affiliation and that while the Aytes memo of June 2006 has advisory authority, it is 
still only advisory in nature. We will focus on the meaning of "cooperative" as part 
of the defining terms "attached to an institution of higher education as a member, 
branch, cooperative or subsidiary[.]" The attached agreements and those previously 
provided are clearly indicative of cooperative agreements. 
Finally, we disagree with the AAO reliance on Black's Law Dictionary 
definition of cooperative, as cited in the AAO appeal is overly restrictive as it is 
construed to indicate some sort of shared ownership, but rather we contend that the 
element of control is not limited to the financial. 
Matter of H- U-
In support of the combined motion, the Petitioner submits, inter alia, evidence of its non-profit 
status, agreements with two universities, and evidence of its "Look-Alike" designation. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision 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. § 103.5(a)(2), "Requirements for motion to reopen," states: 
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 4 of the Form I-290B, which states: 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence demonstrating eligibility at the time the 
underlying petition ... was filed.1 
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 of 
Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 
(lOth Cir. 2013). 
1 The regulation at 8 C.F.R. § 103.2(a)(l) 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 1 to the contrary, and such instructions are incorporated into the regulations requiring its submission." 
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(b)(6)
Matter of H-U-
C. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 103.5(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 4 of the Form I-290B, which states: 
Motion to Reconsider : The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions when filed and must establish that the 
decision was based on an incorrect application of law or policy, and that the decision 
was incorrect based on the evidence of record at the time of decision. 
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). 
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. 2013). 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 ofO-S-G-, 24 I&N Dec. at 60. 
II. DISCUSSION 
For 
the reasons discussed below, the combined motion will be denied. 
A. Motion to Reopen 
In support of the motion, the Petitioner submits evidence that present new facts, namely: evidence of its 
non-profit status; copies of its agreements with and 
and evidence of regarding its "Look-Alike" designation. 
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(b)(6)
Matter of H- U-
The newly submitted evidence of the Petitioner's non-profit status (i.e., evidence that the Petitioner is a 
tax-exempt organization under section 501(c)(3) ofthe Internal Revenue Code) overcomes one ground 
of ineligibility discussed in our previous decision. 
However, the Petitioner's agreements with , and 
, and "Look-Alike" designation, while presenting new facts, do not overcome our previous 
determination that the Petitioner is not related to or affiliated with an institution of higher education. 
As we stated in our previous decision , section 214(g)(5)(A) of the Act, as modified by the American 
Competitiveness in the Twenty-first Century Act of 2000 (AC21), Pub. L. No. 106-313 (Oct. 17, 
2000), states, in relevant part, that the H -1 B cap shall not apply to an individual issued a visa or 
otherwise provided status under section 101 ( a)(15)(H)(i)(b) of the Act who "is employed (or has 
received an offer of employment) at an institution of higher education (as defined in section 101(a) 
of the Higher Education Act of 1965 (20 U.S.C. lOOl(a))), or a related or affiliated nonprofit entity 
(emphasis added) .... " 
While section 214(g)(5)(A) of the Act does not contain definitions for determining whether an 
employer qualifies as a "related or affiliated" nonprofit entity, the regulation at 8 C .F.R. 
§ 214.2(h)(19)(iii)(B), which was promulgated in connection with the enactment of the American 
Competitiveness and Workforce Improvement Act of 1998, defines the terms "related" and 
"affiliated" for H-lB fee exemption purposes. As we also stated in our previous decision, USCIS 
has issued guidance to adjudicators to apply the definitions found at 8 C.F.R. § 214.2(h)(19)(iii)(B) 
to determine whether an entity qualifies as a "related or affiliated" nonprofit entity for H-lB cap 
exemption purposes. See Memo from Michael Aytes, Assoc. Dir. for Domestic Operations, U.S. 
Citizenship and Immigration Services, U.S. Dept. Homeland Sec., to Reg. Dirs. & Serv. Ctr. Dirs., 
Guidance Regarding Eligibility for Exemption from the H-IB Cap Based on §103 of the American 
Competitiveness in the Twenty-FirstCentury Act of 2000 (AC21) (Public Law I 06-3 13) at 3 (June 6, 
2006) (hereinafter referred to as "Aytes Memo"). Thus, to demonstrate that it is a "related or 
affiliated" nonprofit entity pursuant to section 214(g)(5)(A) of the Act, the Petitioner must 
demonstrate that it meets the following regulatory definition at 8 C.F.R. § 214.2(h)(19)(iii)(B): 
An affiliated or related nonprofit entity. A nonprofit entity (including but not limited 
to hospitals and medical or research institutions) that is connected or associated with 
an institution of higher education, through shared ownership or control by the same 
board or federation operated by an institution of higher education , or attached to an 
institution of higher education as a member, branch, cooperative, or subsidiary. 
Here, the Petitioner presents agreements it has made with and 
which establish that the Petitioner provides clinical facilities, experience, 
and instruction to students of the above institutions. Even if the Petitioner had established that these 
schools are "institutions of higher education," the Petitioner has not explained how these agreements 
establish that the Petitioner is "connected or associated with [them] through shared ownership or 
control by the same 
board or federation operated by an institution of higher education, or attached to 
4 
(b)(6)
Matter of H-U-
[them] as a member, branch, cooperative, or subsidiary." 8 C.F.R. § 214.2(h)(19)(iii)(B). We 
observe, to the contrary, that the agreement between the Petitioner and 
specifies that the Petitioner "maintains ultimate responsibility for patient care." 
The Petitioner also presents its "Look-Alike" designation from the U.S. Department of Health and 
Human Services. The Petitioner, however, has not explained the significance and relevance of this new 
evidence? 
Thus, the Petitioner has not established how the new facts presented on motion demonstrate the 
Petitioner's eligibility at the time the underlying petition was filed. The Petitioner's motion does not 
satisfy the requirements of a motion to reopen, and accordingly, the motion to reopen will be denied. 
B. Motion to Reconsider 
The Petitioner's motion also does not satisfy the requirements of a 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 US CIS policy. A motion to reconsider must 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) (requirements for a motion to reconsider); Instructions for Motions to 
Reconsider at Part 4 of the Form I-290B. In this matter, the Petitioner's stated reasons for 
reconsideration are insufficient to establish that our decision was incorrect. 
On motion, the Petitioner contends that "the widest possible latitude be given in determining 
affiliation," and that the Aytes 
memo "is still only advisory in nature." The Petitioner further 
contends that it is attached to as a "cooperative ." The Petitioner disagrees 
with our reliance on Black's Law Dictionary definition of "cooperative" as requiring "some sort of 
shared ownership," and asserts that "the element of control is not limited to the financial." 
The Petitioner 's assertions are unpersuasive. While the Petitioner suggests that we should 
not apply 
the definition of "related or affiliated" at 8 C.F.R. § 214.2(h)(19)(iii) pursuant to the Aytes memo, 
the Petitioner has not offered alternative definitions for these terms and supported the use of these 
alternative definitions by citations to pertinent statutes, regulations , and/or precedent decisions. 
Thus, the Petitioner has not explained how we erred in applying 8 C.F.R. § 214.2(h)(19)(iii) to 
interpret the same, undefined terms found in section 214(g)(5)(A) of the Act. As we explained in 
2 In fact, it appears that the Petitioner's "Look-Alike" designation undennines the Petitioner's ability to meet the regulatory 
definition at 8 C .F.R. § 214.2(h)(19)(iii)(B) . More specifically, according to the "Look-Alike Initial Designation 
Application Instructions 2013" published by the U.S. Department of Health and Human Services ' Health Resources and 
Services Administration (HRSA) , Look-Alike designees "may not be owned , controlled or operated by another entity ." 
See http://bphc.hrsa.gov/programopportunities/lookalike /pdfs/idinstructions.pdfFebruary 8,2013 (last visited Oct. 30, 
20 15). Likewise , HRSA 's website explicitly lists one of the eligibility requirements for "Look-Alike" designation as 
"be[ing] independently owned , controlled , and operated. " See 
http://bphc.hrsa .gov/programopportunities/lookalike/index .html (last visited Oct. 30, 20 15). 
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(b)(6)
Matter of H-U-
our previous decision , by including the phrase "related or affiliated nonprofit entity" in the language 
of AC21 without providing further definition or explanation, Congress likely intended for this phrase 
to be interpreted consistently with the only relevant definition of the phrase that existed in the law at 
the time of the enactment of AC21: the definition found at 8 C.F.R. § 214.2(h)(19)(iii)(B) . It is 
presumed that Congress is aware of USC IS regulations at the time it passes a law. See Goody ear 
Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988). 
The Petitioner also asserts that we should not interpret the term "cooperative" as requiring some type 
of shared ownership, as indicated in Black's Law Dictionary. Again, however, the Petitioner has not 
offered a viable, alternative definition for the term "cooperative " that is supported by other 
authoritative sources. The Petitioner 's vague assertion that "the element of control is not limited to 
the financial," without more, is insufficient to establish that the Petitioner qualifies as a 
"cooperative " of The Petitioner 's assertions on motion are insufficient to 
establish that we erred in finding that the Petitioner is not related to or affiliated with an institution of 
higher education, and therefore , is not exempt from the H-1B visa cap. 
The documents constituting this motion do not articulate how our decision on appeal misapplied any 
pertinent statutes, regulations , or precedent decisions to the evidence of record when the decision to 
dismiss the appeal was rendered. Accordingly , the Petitioner 's motion to reconsider will be denied. 
C. Statement of Judicial Proceeding 
Finally, the submission does not meet the applicable requirements for a motion for an additional 
reason. More specifically, the motion does not contain a statement pertinent to whether the validity 
of the unfavorable decision has been or is the subject of any judicial proceeding, which is required 
by 8 C.F.R. §103.5(a)(l)(iii)(C) . The combined motion must also be denied for this reason. 
III. CONCLUSION 
The combined motion does not meet the requirements for a motion to reopen or a motion to 
reconsider. Therefore, the combined motion will be denied. 
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 depm1ure 
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 of the Act, 8 U.S.C. § 1361; Matt er of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be denied, 
the proceedings will not be reopened or reconsidered, and our previous decision will not be 
disturbed. 
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Matter of H- U-
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofH-U-, ID# 14965 (AAO Nov. 13, 2015)