dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 9, 2024 In Re: 33133016 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
file a petition with U.S. Citizenship and Immigration Services (USCIS) 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 California Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. The Director denied a subsequent 
combined motion to reopen and motion to reconsider. The matter is now before us on appeal pursuant 
to 8 C.F.R. §§ 103.3 and 103.5(a)(6). 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines the term "specialty occupation" as an 
occupation that requires the "theoretical and practical application of a body of highly specialized 
knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States." The regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a non-exhaustive list of fields of 
endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the proffered position must meet 
one of four criteria to qualify as a specialty occupation position. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our prior decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be filed 
within 30 days of the decision that the motion seeks to have reconsidered. 8 C.F.R. § 103.5(a)(l)(i). 
A motion to reopen a proceeding also must be filed within 30 days, except that the failure to file a 
motion to reopen before this period expires may be excused, in our discretion, if it is demonstrated 
that the delay was reasonable and was beyond the control of the petitioner. Id. A motion may be 
granted if it satisfies these requirements and demonstrates eligibility for the requested benefit. See 
Matter of Coelho, 20 I&N Dec. 464,473 (BIA 1992) (requiring that new evidence have the potential 
to change the outcome). 
The question before us on appeal is whether the Director erred in dismissing the Petitioner's combined 
motions to reopen and reconsider the denial of the H-lB petition. The Director denied the combined 
motions, concluding that they were submitted untimely, and the Petitioner did not establish that the 
delay in submitting the motions was reasonable and beyond its control. Additionally, the Director 
considered the merits of the combined motions and concluded that, even if they had been timely 
received, the Petitioner did not establish cause to reopen or reconsider the matter. 
The record shows that following the denial of the H-lB petition, the Petitioner's first attempt to file a 
combined motion to reopen and motion to reconsider was rejected on the basis that the fee payment 
instrument was incorrect. 1 Because the first combined motions were rejected, the Petitioner filed 
subsequent combined motions, although the window to timely file had by that point passed. The 
second combined motions, although untimely, were accepted and receipted, and their dismissal is now 
at issue on appeal. 
The Petitioner contends that USCIS erred in rejecting the first combined motions to reopen and 
reconsider because the filing fee check submitted was for the correct filing fee amount and it did not 
combine payment with any other application or petition. The Petitioner asserts that, because the first 
combined motions were rejected in error, the Director should have treated the second motions as 
though they were timely. The Petitioner also contends on appeal that 1) its motion to reconsider 
demonstrated that the H-lB petition denial was based on an incorrect application oflaw and policy, 
and 2) its motion to reopen was supported by documentary evidence-specifically, a new opinion 
letter and additional job postings from other organizations-that demonstrated that the proffered 
position is a specialty occupation and therefore proper cause to reopen the proceedings. 
Upon review of the record, we conclude that the Director did not err in dismissing the Petitioner's 
motion to reconsider. Although the regulations state that we may, in our discretion and in certain 
circumstances, consider an untimely motion to reopen, the regulations do not similarly contemplate 
consideration of an untimely motion to reconsider. See 8 C.F.R. § 103.5(a)(l )(i). Although the 
Petitioner asserts that we should treat its motion to reconsider as if it were timely, it was in fact 
submitted untimely and therefore was properly dismissed by the Director. 
Regarding the motion to reopen, we conclude that the Director also did not err in dismissing this 
motion. The untimely filing of a motion to reopen may be excused, in our discretion, only if it is 
demonstrated that the delay was reasonable and was beyond the control of the petitioner. Id. Although 
the Petitioner claims that the delay was due to an improper rejection of the first combined motions, 
1 The rejection notice states that the filing fee payment was improperly combined with the fee payment for another 
application or petition on a single fee payment instrument (i.e., a single check submitted for payment of two benefit 
requests). 
2 
the Petitioner has not sufficiently demonstrated that the rejection was in error, and therefore that the 
delay was reasonable and beyond its control. 
To support its assertion that the rejection of the first combined motions was improper, and that the 
delay was therefore reasonable and beyond its control, the Petitioner submitted a copy of a check that 
it claims was the check submitted with the first combined motions. However, the Petitioner has not 
provided evidence, other than its own statements, that this was the check that was part of the rejected 
package. We note also that the check is dated August 8, 2023. The H-1B petition was denied 
September 27, 2023, and the Petitioner claims it submitted its first combined motions on October 27, 
2023.2 The date of the check therefore predates even the original denial of the H-1 B petition. While 
this does not preclude the check from having been the check included with the initial, rejected 
combined motions, it is a well-established principle that "a presumption of regularity attaches to the 
actions of Government agencies" absent clear evidence to the contrary. See US. Postal Serv. v. 
Gregory, 534 U.S. 1, 10 (2001) (citing United States v. Chem. Found., 272 U.S. 1, 14-15 (1926)). The 
Petitioner's statement and a copy of a check do not constitute clear evidence that the rejection was 
improper. We conclude, therefore, that the Petitioner has not established that the delay was reasonable 
and beyond its control. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. See section 291 of the Act. The Petitioner has not met its burden to establish that 
either the motion to reopen or the motion to reconsider the H-1B petition denial should have been 
granted. The Petitioner's motion to reconsider was untimely, therefore necessitating its denial 
pursuant to 8 C.F.R § 103.5(a)(l)(i). The Petitioner's motion to reopen was also untimely and the 
Petitioner did not demonstrate that the delay in filing was reasonable and beyond its control. Id. 
Accordingly, the Director's decision to dismiss the combined motions will stand. 
ORDER: The appeal is dismissed. 
2 The rejection notice is dated October 31, 2023. However, the Petitioner claims it did not receive the rejection notice until 
December 1, 2023. 
3