dismissed H-1B Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 25,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a retail business, seeks to temporarily employ the Beneficiary as a "sales manager" 
under the H-lB 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 H-1B 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, Vermont Service Center, denied the petition. The Director concluded that the position 
offered to the Beneficiary did not qualifY as a specialty occupation. The Petitioner appealed the 
denial to us, and we dismissed it. The Petitioner then filed a second appeal, which we rejected.' The 
matter is now before us on a combined motion to reopen and reconsider. 
We will deny the combined motion. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.P.R. § 103.5(a)(l)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration Services (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, Notice of Appeal or 
Motion, 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 
1 We based our rejection on two independent grounds: (I) that we do not exercise appellate jurisdiction over our own 
decisions; and (2) that, even if the matter then before us had been filed as a motion, its filing date (51 days after we 
issued our decision dismissing the appeal) exceeded the time limit specified in the regulations for the filing of a motion. 
In the instant submission, the Petitioner addresses only the second ground for our rejection. 
Matter of S-, Inc. 
8 C.P.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.P.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.2 
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 ofCoelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 
1239-40 (lOth Cir. 2013). 
C. Requirements for Motions to Reconsider 
The regulation at 8 C.P.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. 
2 The regulation at 8 C.F.R. § I 03 .2(a)(l) states in pertinent part : "Every benefit request or other document submitted to 
DHS [Department of Homeland Security] must be executed and filed in accordance with the form instructions, 
notwithstanding any provision of 8 CFR chapter I to the contrary, and such instructions are incorporated into the 
regulations requiring its submission." 
"2 
Matter of S-, Inc. 
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.P.R.§ 103.5(a)(3) and 8 C.P.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.P.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. 
The combined motion before us consists of: (1) a statement from counsel; and (2) documents 
previously submitted by the Petitioner. Counsel acknowledges that the prior submission was 
untimely, but states that it occurred because of an error made by an intern at his office. 
A. The Motion to Reopen 
The facts as related in counsel's affirmation do not provide a basis for reopening the prior 
submission. Those facts do not relate to the primary basis of our rejection - that is, our lack of 
authority to exercise appellate jurisdiction over our own decisions. The statement provided by 
counsel is not relevant to the primary ground for our rejection and, thus, would not result in a 
favorable outcome for the Petitioner, even if the matter was reopened. 
The Petitioner's instant submission does not satisfy the requirements of a motion to reopen. While 
this newly submitted evidence presents "new facts," the Petitioner has not sufficiently explained how 
these new facts would likely change the result in the case. See Matter of Coelho, 20 I&N Dec. at 
473; see also Maatougui v. Holder, 738 F.3d at 1239-40. Thus, the motion to reopen will be denied. 
B. The Motion to Reconsider 
The submission also does not satisfy the requirements for granting a motion to reconsider. More 
specifically, the Petitioner does not establish that our rejection was based upon an incorrect 
application of law or policy to the evidence before us when we issued that decision. Further still, the 
Matter of S-, Inc. 
submission on motion does not cite any statutes, regulations, or precedent decisions that would 
support reconsideration of our rejection when we issued that decision. Accordingly, we will also 
deny the motion to reconsider. 
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. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofS-, Inc., ID# 16508 (AAO Mar. 25, 2016) 
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