dismissed H-1B Case: Sports Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 12688948 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 15, 2020 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-18 nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-18 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 of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation. Subsequently, we summarily 
dismissed the Petitioner's appeal. The matter is again before us on a motion to reopen and motion to 
reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motions. 
I. ANALYSIS 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § 103.5(a)(l)(i) . The 
filing before us is not a motion to reopen and reconsider the denial of the petition. Instead, it is a 
motion to reopen and reconsider our most recent decision, the summary dismissal. Our most recent 
decision explained that although the Petitioner indicated on the Form 1-2908, Notice of Appeal or 
Motion, that it would submit a brief to the Administrative Appeals Office (AAO) within 30 calendar 
days, as of May 21, 2020, no brief had been received. Therefore, we cannot consider new objections 
to the earlier denial, and the Petitioner cannot use the present filing to make new allegations of error 
at prior stages of the proceeding. 
Further, to merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, submission of a properly completed Form 1-2908, Notice of Appeal or Motion, with the correct fee), 
and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l) . The regulation at 8 C.F.R. 
§ 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the 
validity of the unfavorable decision has been or is the subject of any judicial proceeding." In this matter, 
the motions do not contain the required statement. Per the regulation at 8 C.F.R. § 103.5(a)(4), because 
the motions do not meet the applicable requirements, they must be dismissed. 
A. Motion to Reopen 
A motion to reopen must state the new facts to be provided and be supported by affidavits or other 
documentary evidence. 8 C.F.R. § 103.5(a)(2). 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314,323, (1992) (citing INS v. Abudu, 485 U.S. 94, 108 (1988)). "There is a strong 
public interest in bringing litigation to a close as promptly as is consistent with the interest in giving 
the adversaries a fair opportunity to develop and present their respective cases." INS v. Abudu, 485 at 
107. Based on its discretion, "[T]he [USCIS] has some latitude in deciding when to reopen a case. 
[USCIS] should have the right to be restrictive. Granting such motions too freely will permit endless 
delay of deportation by aliens creative and fertile enough to continuously produce new and material 
facts sufficient to establish a prima facie case." Id. at 108. The result also needlessly wastes the time 
and efforts of the triers of fact who must attend to the filing requests. Id. A party seeking to reopen a 
proceeding bears a "heavy burden." Id. at 110. 
The Petitioner provides a copy of a U.S. Postal Service receipt and a printout showing the item listed 
in the receipt was received in Phoenix on February 7, 2020. Notably, neither document includes any 
information to identify the "flat rate envelope" as being related to the appeal in question. Regardless, 
both the Form l-290B and its instructions provide that if the Petitioner wishes to file a brief within 30 
days of filing the appeal, it must submit the brief to the AAO directly.1 Petitioner's counsel, who 
indicated in its cover letter accompanying the appeal that the "brief and/or additional evidence will be 
submitted to the Administrative Appeal[s] Office (AAO) within thirty (30) days from today," provides 
no additional explanation for its failure to mail the brief to the correct address. 
B. Motion to Reconsider 
A motion to reconsider must 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 
USCIS policy. 8 C.F.R. § 103.5(a)(3). The Board of Immigration Appeals (BIA) generally provides 
that a motion to reconsider asserts that at the time of the previous decision, an error was made. It 
questions the decision for alleged errors in appraising the facts and the law. The very nature of a 
motion to reconsider is that the original decision was defective in some regard. See Matter of Cerna, 
20 l&N Dec. 399, 402 (BIA 1991). 
1 The regulation at 8 C.F.R. § 103.2(a)(1) states, in pertinent part: 
Every benefit request or other document submitted to OHS must be executed and filed in accordance 
with the form instructions ... and such instructions are incorporated into the regulations requiring its 
submission. 
2 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the 
proceedings. See Matter of Medrano, 20 l&N Dec. 216, 220 (BIA 1990, 1991). Rather, the "additional 
legal arguments" that may be raised in a motion to reconsider should flow from new law or a de nova 
legal determination reached in its decision that could not have been addressed by the party. Further, a 
motion to reconsider is not a process by which a party may submit, in essence, the same brief presented 
on appeal and seek reconsideration by generally alleging error in the prior decision. Matter of O-S-G-, 
24 l&N Dec. 56, 58 {BIA 2006). Instead, the moving party must specify the factual and legal issues 
raised on appeal that were decided in error or overlooked in the initial decision or must show how a 
change in law materially affects the prior decision. Id. at 60. 
Here, the Petitioner does not allege that the AAO's decision to summarily dismiss the appeal was 
based on an incorrect application of law or USCIS policy and is not supported by any pertinent 
precedent decisions. 
II. ADDITIONAL ISSUES 
While not a basis for our decision, we would briefly note the following additional issues in the record 
that the Petitioner should address in any future filings. 
The Petitioner is required to submit a certified labor condition application (LCA) with its H-1B filing. 
According to section 212(n)(1)(A) of the Act, an employer must attest that it will pay a holder of an 
H-1B visa the higher of the prevailing wage in the "area of employment" or the amount paid to other 
employees with similar experience and qualifications who are performing the same services. See 20 
C.F.R. § 655.731(a); Venkatrarnan V. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel V. 
Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lorn & Adrn'r Wage & Hour Div. v. 
Clean Air Tech. lnt'I, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 
30, 2009). 
In this matter, the Petitioner provided a Level I wage on the LCA. A review of the record, however, 
indicates that a large portion of the provided duties fall outside of those listed in the Occupational 
Information Network (O*NET) entry for marketing managers, the occupation listed on the LCA. For 
example, according to the initial support letter, the Beneficiary will (note: errors in original have not 
been changed): 
I Place newcomers to the appropriate groups according to their age and skill level 
I Create a group schedule 
I Create a gymnastics training center positive atmosphere by organizing each student's and 
instructor's birthday celebration ceremony 
I Schedule and supervise orientation meetings for parents 
I Responsible for collecting tuition and fees in a timely fashion 
I Renew and update professional team members and athletes info/memberships 
I Register athletes and coaches for thel I sanctioned competitions 
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In response to the Director's request for evidence, the owner2 indicated that the Beneficiary's duties 
include bookkeeping for both regular tuition and additional events payments. She further stated that 
the position relies on the Beneficiary's: 
I Personal gymnastics experience 
I Former gymnastics experience and current I I certification [which] helps to apply all 
regulations and policies to Gymnastics Center work 
I Accounting management, crediting and taxation, [which] helps to keep up with payroll, 
forms and taxes and accountant annual financial statements 
I Fluent Russian which helps to attract more customers 
Additional evidence in the record indicates that she has acted as the "meet director" for a number of 
gymnastics events. Further, a review of the Petitioner's website3 states the following about the 
Beneficiary, who is listed as a "Supervisor! I lnstructors,Ocoach:" 
After volunteering forl lfor several years, she was offered a position of a Marketing 
Manager in 2014. For almost 6 years, [the Beneficiary] ran annual competitions and 
performances, organized events, and parents' meetings, attracted new students and sponsors, 
created personalized team materials etc. 
Recently, fulfillin the com an needs, [the Beneficiary] has accepted the position of 
Supervisor of Instructors and keeps volunteering as a coach. She also 
serves as.___ __ _.Administrative Committee! !State Chair. 
First, if there has been a material change in the Beneficiary's role, the regulation at 8 C.F.R. 
§ 214.2(h)(2)(i)(E) requires the filing of an amended petition as follows: 
Amended or new petition. The petitioner shall file an amended or new petition, with 
fee, with the Service Center where the original petition was filed to reflect any material 
changes in the terms and conditions of employment or training or the alien's eligibility 
as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, 
or H-2B petition must be accompanied by a current or new Department of Labor 
determination. In the case of an H-1B petition, this requirement includes a new labor 
condition application. 
Second, while the U.S. Department of Labor (DOL) is the agency that certifies LCA applications 
before they are submitted to USCIS, DOL regulations note that the Department of Homeland Security 
(OHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for determining 
whether the content of an LCA filed for a particular Form 1-129 actually supports that petition. See 
20 C.F.R. § 655.705(b), which states, in pertinent part (emphasis added): 
For H-1B visas ... OHS accepts the employer's petition (OHS Form 1-129) with 
the DOL-certified LCA attached. In doing so, the OHS determines whether the 
petition is supported by an LCA which corresponds with the petition, whether the 
2 The owner shares the same name listed for the Beneficiary's mother on her birth certificate. 
3 See https:/~-------~last accessed October 13, 2020). 
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occupation named in the [LCA] is a specialty occupation or whether the individual 
is a fashion model of distinguished merit and ability, and whether the qualifications 
of the nonimmigrant meet the statutory requirements for H-lB visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-lB petition filed on behalf of the Beneficiary. Here, the Petitioner has not established that it 
submitted a valid LCA that has been certified for the proper occupational classification or wage level. 
Third, in order to establish that the position qualifies as a specialty occupation, the provided 
description must sufficiently describe the actual work the Beneficiary will perform, and the correlation 
between that work and the need for a particular level of knowledge in a specific specialty. 
See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). A position may not qualify as a specialty 
occupation based solely on either a preference for certain qualifications for the position or the claimed 
requirements of a petitioner. Id. at 387. Instead, the record must establish that the performance of the 
duties of the proffered position requires both the theoretical and practical application of a body of 
highly specialized knowledge and the attainment of a baccalaureate or higher degree in a specific 
specialty, or its equivalent, as the minimum for entry into the occupation. See section 214(i)(1) of the 
Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). Here, the provided duties 
do not adequately convey the actual work the Beneficiary will perform or the need for any particular 
level of education to perform them. 
Fourth, there is no provision in the law for specialty occupations which permits the performance of 
non-qualifying duties. While we view the performance of duties that are incidental to the primary 
duties of the proffered position as acceptable when they are unpredictable, intermittent, and of a minor 
nature, anything beyond that, e.g., predictable, recurring, and substantive job responsibilities, must be 
specialty occupation duties or the proffered position as a whole cannot be approved as a specialty 
occupation. The Petitioner does not sufficiently address how the general duties it provided require the 
theoretical and practical application of highly specialized knowledge and attainment of at least a 
bachelor's degree in a specific specialty or its equivalent and has not established that any of these 
duties require a bachelor's degree or higher in a specific specialty to perform them. 
Finally, we note deficiencies with the evidence regarding the Beneficiary's qualifications. According 
to the evaluation from Washington Evaluation Service, the Beneficiary's "academic studies are 
academically equivalent to a Bachelor of Arts in Commerce as awarded by an accredited U.S. 
University." The evaluator cites the Electronic Database for Global Education (EDGE) as her source 
for this conclusion based upon a review of the following documents (verbatim): 
I Diploma and qualification as commerce Expert with the specialty in Commerce.I 
I I Russian Federation, 1998. ~---~ 
I Supplement to Diploma. 
I Transcripts listing courses and grades. 
Here, the Petitioner did not include a copy of the diploma, only a translation. Regardless, according 
to the "supplement to diploma," the length of full-time studies was "1 year and 10 month[s]" and lists 
her "previous educational document: as "high school." In addition, she passed a four week "pre­
diploma practice" which is listed under "on-the-job training." It is unclear how less than two years of 
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study beyond high-school could be equated to the equivalent of a U.S. bachelor's degree. Without 
more, the Petitioner has not established that the Beneficiary holds the equivalent of a U.S. bachelor's 
degree in a specific specialty. 
111. CONCLUSION 
In this matter, the Petitioner has not overcome our prior decision or shown proper cause to reopen or 
reconsider this matter. 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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