dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT-A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
l 
DATE: NOV. 10, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to extend the Beneficiary's 
temporarily employment as a "business analyst/marketing r.esearch analyst" under the H-1B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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, revoked the approval of the petition on the ground that the 
Petitioner was no longer employing the Beneficiary in the capacity specified in the petition, and that 
the Petitioner violated the terms and conditions of the approved petition. The Petitioner appealed the 
denial, which we dismissed. 1 
The matter is now before us on a combined motion to reopen and motion to reconsider. In its 
motion, the Petitioner asserts that the Director's notice of intent to revoke (NOIR) its petition was 
deficient, and therefore the Director's revocation is not sustainable. We will deny the motion. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 103.5(a)(1)(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, Notice of Appeal or 
1 We initially summarily dismissed the appeal, but then withdrew that decision and reopened the appeal. 
Matter ofT-A-Inc. 
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 
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:2 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence. 
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). 
C. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 1 03.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be 
supported by ariy pertine~t 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. § 103.2(a)(J) 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 C.F.R. 
chapter I to the contrary, such instructions are incorporated into the regulations requiring its submission." 
2 
Matter ofT-A- 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.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 of 0-S-G-, 24 I&N Dec. at 60. 
II. DISCUSSION 
For the reasons discussed below, the motion to reopen and motion to reconsider will be denied. 
In support of the motion, the Petitioner submits a brief explaining why it believes the Director's NOIR 
was deficient. The Petitioner has not, however, presented any new facts. As such, the Petitioner's 
motion does not satisfy the requirements of a motion to reopen. 8 C.F.R. § 103.5(a)(2). The motion 
to reopen will be denied. 
Nor does the Petitioner's motion 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 USCIS policy. 8 C.F.R. § 103.5(a)(3). The scope of a motion to 
reconsider is strictly limited to whether the immediate prior decision, i.e., our decision dated 
August 30, 2016, was incorrect. The scope of this motion cannot be expanded to consider whether 
any prior decisions, e.g., the Director's NOIR, were incorrect. 
Here, the Petitioner's motion focuses only on procedural errors allegedly committed in the Director's 
NOIR. The motion does not address any portion of our immediate prior decision that the Petitioner 
believes was based on an incorrect application of law or policy. Therefore, the Petitioner's motion 
does not satisfy the requirements of a motion to reconsider. As stated above, the scope of this 
motion is strictly limited to whether our decision, dated August 30, 2016, was incorrect. The 
purpose of a motion to reconsider should not be to raise legal arguments that could have been raised 
earlier in the proceedings. 3 See Matter of Medrano, 20 I&N Dec. at 219. 
3 Even if the Petitioner had properly raised this issue in its appeal, we still would not have reversed the Director's decision to 
revoke the petition. The Director's NOIR was sufficiently detailed to apprise the Petitioner of the derogatory information. 
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Matter ofT-A- Inc. 
The documents constituting this motion do not articulate how our decision, dated August 30, 2016, 
misapplied any pertinent statutes, regulations, or precedent decisions to the evidence of record when 
the decision to dismiss the appeal was rendered. Accordingly, the motion to reconsider will be 
denied 
III. CONCLUSION 
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; 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 ofT-A- Inc., ID# 168367 (AAO Nov. 10, 2016) 
Furthermore, even if the Director had committed a procedural error, it is not clear what remedy would be appropriate 
now. The Petitioner does not contest any of the Director's or our factual findings and conclusions of law. It would serve 
no useful purpose to remand the case to the Director to re-issue a new NOIR when the Petitioner has already been 
informed of, and has had opportunities to address, the derogatory information. 
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