dismissed H-1B Case: Software Development

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: LIN 03 222 52501 Office: NEBRASKA SERVICE CENTER Date: O~C·04.
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § llOl(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
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, Chief
Administrative Appeals Office
(
www.uscis.gov
LIN 03 222 52501
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa pet ition and the Administrative
Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO on motion to reopen.
The motion will be dismissed.
The petitioner is a wholesale and retail supplier of imported beauty products , and seeks to employ the
beneficiary as a programmer analyst and POS software developer. It endeavors to classify him as a
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration
and Nationality Act (the Act), 8 U.S.c. § llOl(a)(15)(H)(i)(b). The director denied the petition on the ground
that the proffered position is not a specialty occupation. The AAO affirmed the director's findings.
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).
The motion to reopen is not supported by new facts that were unavailable that could not reasonably have been,
discovered or presented in previous proceedings . The "new facts" submitted by the petitioner consist of job
advertisements, a tax return and other financial documents , and some trade magazines. This information was
available when the appeal was initially filed and prior to the . AAO 's determination. As such, the petitioner
has not presented "new facts" to be provided in a reopened proceeding.
A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinent
precedent decisions to establis~ 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 . § 103.5(a)(3).
While not styled a motion to reconsider, the motion does not establish that the prior decision was based on an
incorrect application of law or CIS policy, nor does it establish that the decision was incorrect based on the
evidence of record at the time of the initial decision . The record reflects, and the prior decision correctly
states, that the proffered position does not qualify as a specialty occupation under 8 C .F.R.
§ 214 .2(h)(4)(iii)(A) .
A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 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 motionis dismissed. The previous decision of the AAO dated November I, 2004 , is affirmed.
The petition is denied .