dismissed H-1B Case: Nursing

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 159 50849 Office: NEBRASKA SERVICE CENTER Date: APR 1 2 2m6 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LIN 04 159 50849 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition. The petitioner then filed an 
appeal that was rejected as untimely. The director treated the untimely appeal as a motion to reopen or 
reconsider, and dismissed the motion. The director's dismissal of the petitioner's motion is now before the 
Administmtive Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a nursing registry, and seeks to employ the beneficiary as a staff nurse. It endeavors to 
classify him as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 lOI(a)(lS)(H)(i)(b). The director denied the 
petition on the ground that the proffered position was not a specialty occupation. 
The petitioner filed an appeal on August 12, 2004 to a director's decision rendered on June 8, 2004. In order 
to properly file an appeal, the regulation at 8 C.F.R. $ 103.3(a)(2)(i) provides that the affected party must file the 
complete appeal within 30 days of service of the unfavorable decision. If the decision was mailed, the appeal 
must be filed within 33 days. See 8 C.F.R. $ 103.5aP). The appeal in ths instance was filed 65 days after 
service of the director's decision and was, accordingly, properly rejected by the director as untimely. If, however, 
an untimely appeal meets the requirements of a motion to reopen or reconsider, the appeal must be treated as a 
motion, and a decision must be made on the merits of the case. 8 C.F.R. $ 103.3(a)(2)(v)(B)(2). The director 
treated the untimely appeal as a motion to reopen andlor reconsider. 
The regulation at 8 C.F.R $ 103.5 provides in pertinent part that "a motion to reopen must state the new facts 
to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." 
"New" facts are those that were not available and could not reasonably have been discovered or presented in 
the previous proceeding. A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. 
$ 103.5(a)(4). 
A motion to reconsider must: (1) 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 CIS policy; 
and (2) establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. 5 103.5(a)(3). 
Although the petitioner was given 30 days in which to submit a brief in support of its motion, it failed to do so 
within the time permitted. The motion to reopen was not supported by affidavits or other documentary 
evidence, nor did it present new facts to be presented in a reopened proceeding. As such, it was properly 
dismissed. 
The motion to reconsider did not establish that the prior decision was based on an incorrect application of law 
or CIS policy, nor did it establish that the decision was incorrect based on the evidence of record at the time 
of the initial decision. The motion was properly dismissed. 
In visa petition proceedings, the burden of proving eligibility remains entirely with the petitioner. Section 
291 of the Act, 8 U.S.C. $ 1361. The petitioner has not met that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.