dismissed H-1B Case: Travel Services

MATTER OF T-H- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 31,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which engages in "various travel and tour services, events, convention, wedding 
planning and other related services," seeks to temporarily employ the Beneficiary as an "operations 
manager" under the H-1B 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)(l5)(H)(i)(b). The 
H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
I 
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 minirpum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not established that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. The Petitioner appealed the 
decision to us. We dismissed the appeaf, concluding that the evidence of record was inadequate to 
establish that the duties of the proffered position comprise the duties of a specialty occupation. 
The matter is now before us on a combined motiori to reopen and reconsider. In its motion, the 
Petitioner asserts that the proffered position is a specialty occupation and that the Beneficiary is 
qualified for the proffered position. 
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) includ~s 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." · 
Matter of T-H-Ine. 
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 Motion or 
Appeal, 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: 
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. 1 
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. § 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 prec~dent 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. 
1 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 must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR 
chapter 1 to the contrary, and such instructions are incorporated into the regulations requiring its submission." 
2 
(b)(6)
Matter ofT-H- Inc. 
\ 
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 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. 
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, 
1 71-72 (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 combined motion will be denied. 
A. Motion to Reopen . 
In stipport of the motion, the Petitioner submits a brief explaining why it believes the proffered 
position qualifies as a specialty occupation. Its brief is supported by an affidavit by the Petitioner's 
president, who claims that "as an international business with diverse and distinct 
operations," the Petitioner requires the candidate for the proffered position to possess a bachelor's 
degree in economics, or a bachelor's degree in business administration with a concentration in 
economics. The Petitioner also submits an academic credentials evaluation dated March 22, 2016, 
by of which concludes that the Beneficiary possesses 
the U.S. equivalent to a bachelor's 1 degree in business administration with a concentration in 
economics, as well as the U.S. equivalent to a master of arts degree in education.2 Based on this 
2 We recall that the previously submitted academic credentials evaluation, prepared by of 
concluded that the Beneficiary possesses the U.S. equivalent to a bachelor's degree in business 
administration (no concentration noted) and a master of science degree in exercise science. No attempt to explain and 
resolve the discrepancies between the evaluators' findings has been made by the Petitioner. Nevertheless, as a 
3 
(b)(6)
Matter ofT-H- Inc. 
newly submitted evidence, the Petitioner concludes that the motion should be granted and the 
petition approved. 
While assertions are noted, we find that the Petitioner has not consistently articulated the 
minimum educational requirement for the proffered position. For instance, the Petitioner initially 
stated that it requires the candidate for the proffered position to possess a bachelor's degree in 
business administration, · hospitality management, or a related field. In response to the Director's 
request for evidence (RFE), the Petitioner variously stated that the proffered position requires a 
bachelor's degree in business administration with a concentration in management, or a bachelor's 
degree in business administration, travel management, or a closely related field. On appeal, the 
Petitioner stated that the minimum entry requirement for the proffered position may be satisfied by a 
degree in business administration, economics, finance, travel industry 
management, business 
management, or business. 
In dismissing the Petitioner 's appeal, we noted within the context of our analysis that the Petitioner's 
imposition of a general degree requirement in business administration, without the requirement for 
further specialization, demonstrates that the proffered position is not a specialty occupation. Now, 
' ) 
on motion, the Petitioner asserts that the proffered position requires a candidate with a· bachelor's 
degree in economics, or a bachelor's degree in business administration with a concentration in 
economics. 
As noted in our prior decision, these various stated requirements, which changed over time, render it 
unclear what the Petitioner's actual minimum entry requirement for the proffered position is. "[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. "Doubt cast on any aspect of the petiti~mer's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining eviaence offered in 
support of the visa petition." !d. at ?91. 
Here, the Petitioner's assertion of a new requirement does not constitute new "facts." On motion , 
the Petitioner cannot materially change the requirements of the position. The Petitioner must 
establish that the position offered to the Beneficiary when the petition was filed merits classification 
for the benefit sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 
1978). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). 
beneficiary 's credentials to perform a particular job are relevant only when the job is found to be a specialty occupation , 
we will not further discuss the issue of the Beneficiary 's qualifications . 
4 
Matter ofT-H- Inc. 
The Petitioner has not established how the new evidence presented on motion demonstrates the 
Petitioner's eligibility at the time the underlying petition was filed. The Petitioner's motion does not 
satisfy the requirements of a motion to reopen, and accordingly, the motion to reopen will be denied 
B. Motion to Reconsider 
Nor does the Petitioner's motion satisfy the requirements of a motion to reconsider. More 
specifically, while the Petitioner continues to assert that its petition should be approved, it does not 
articulate how our March 1, 2016, decision was based on an incorrect application of law or policy. 
Rather, the Petitioner reiterates many of the statements it provided in response to the Director's RFE. 
As stated above, the reiteration of previous arguments or general allegations of error will not suffice. 
See Matter of 0-S-G-, 24 I&N Dec. at 60. The Petitioner must state the specific factual and legal 
issues raised on appeal that were decided in error or overlooked in the initial decision. !d. The 
Petitioner has not done so here. 
We note the Petitioner's reference to Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir. 2007), in 
support of its assertion that its newly imposed requirement of a bachelor's degree in economics, or in 
business administration with a concentration in economics, establishes that its degree requirement is 
directly related to the duties and responsibilities of the position. Here, however, the Petitioner's 
assertions on motion and its material change to the requirements of the position do not establish that 
the proffered position is a specialty occupation. The Petitioner's requirement of a concentration in 
economics appears to have been imposed in response to our finding that a bachelor's degree in 
business administration, without more, will not justify a finding that a particular position qualifies 
for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. As 
noted above, a petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. 
The documents constituting this motion do not articulate how our decision on appeal misapplied any 
pertinent statutes, regulations, or precedent decisions to the evidence of record when the decision to 
dismiss the appeal was rendered. Accordingly, the Petitioner's motion to reconsider will be denied. 
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. 
The Petitioner should note that, unless USCIS directs otherwise, the filing of a motion to reopen or 
reconsider does not stay the execution of any decision in a case or extend a previously set departure 
date. 8 C.F.R. § 103.5(a)(l)(iv). 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be denied, 
5 
Matter ofT-H- Inc. 
the proceedings will not be reopened or reconsidered, and our prevwus decision will not be 
disturbed. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofT-H- Inc., ID# 18176 (AAO Aug. 31, 2016) 
6