dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 20164240 
Motion on Administrative Appeals Office Decision 
Form I-129, Petition forNonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 14, 2022 
The Petitioner seeks to employ the Beneficiary under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(HXi)(b), 8 U.S.C. 
§ 1101 (a)(15XH)(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 California Service Center Director denied the Form I-129, Petition for a Nonimmigrant Worker, 
concluding that the Petitioner did not establish the proffered position qualified as a specialty 
occupation, and that the Beneficiary was not qualified for the position. We dismissed the Petitioner's 
appeal on the specialty occupation basis, and we dismissed a subsequent motion filing because it was 
not filed timely (it was filed 249 days after our appeal dismissal) , and a second motion because the 
Petitioner did not satisfy the requirements of a motion to reopen or a motion to reconsider. The matter 
is before us again on a motion to reconsider. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 I&N 
Dec. 369,375 (AAO 2010). Upon review, we will dismiss this motion. 
A motion to reconsider must: (1) state the reasons for reconsideration, (2) be supported by any 
pertinent precedent decision to establish that the decision was based on an incorrect application of law 
or policy , and (3) establish that the decision was incorrect based on the evidence in the record at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider that does not satisfy these 
requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). 
For the reasons discussed below, we determine that the Petitioner has not overcome our reasoning 
within the most recent motion decision by establishing the decision was based on an incorrect 
application of law or U.S. Citizenship and Immigration Services (USCIS) policy . This is the primary 
requirement for a motion to reconsider. 
I. PROCEDURAL SHORTCOMING 
As an initial issue, the regulation at 8 C.F.R. § 103.5( a)( 1 )(iii) requires that a motion must be accompanied 
by a statement about whether or not the validity of the unfavorable decision has been or is the subject of 
any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding. We note 
that the Petitioner did not submit a statement relating to this mandate. Pe1iaining to this sh01icoming, the 
regulation at 8 C.F.R. § 103 .5(a)(4) requires that a motion that does not meet applicable requirements 
shall be dismissed. As the Petitioner did not provide the required statement, the regulation provides that 
the motion must be dismissed. 
II. MOTION TO RECONSIDER 
Even if the procedural failure noted above was not present in this case, we would still dismiss the motion. 
A motion to reconsider must state the reasons for reconsideration and establish that the decision was based 
on an incorrect application of law or USCIS policy. 8 C.F.R. § 103 .5 ( a)(3). We offer the time line of 
events: 
• May 13, 2019: theDirectordeniedthepetition; 
• June 14, 2019: the Petitioner filed the appeal; 
• February 20, 2020: we dismissed the appeal; 
• October 27, 2020: thePetitionerfiled the firstmotion; 
• February 19, 2021: we dismissed the first motion because it was not timely filed; 
• April 23, 2021: the Petitioner filed the second motion; 
• July 27, 2021: we dismissed the second motion for failure to satisfy the motion requirements; 
• August 30, 2021: the Petitioner filed this motion. 
In response to the COVID pandemic, USCIS implemented flexible filing times noting: "USCIS will 
consider a response received within 60 calendar days after the due date set forth in the following requests 
or notices before taking any action, if the issuance date listed on the request or notice is between March 
1, 2020, and July 25, 2022 .... " USCIS Alert, USCJS Extends Flexibility for Responding to Agency 
Requests (Mar. 30, 2022), https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for­
responding-to-agency-requests-1. 
On motion, the Petitioner argues that even though the first motion was filed outside the agency's 
COVID flexibility parameters, those flexibilities went into effect only one week from the date in 
question and we should extend the COVID flexibilities even further to apply to this case. However, 
the Petitioner does not offer any legal resource or authority in support of that contention. Nor does 
the Petitioner persuade us that adhering to the COVID flexibility dates the agency put in place was 
erroneous, which is a primary requirement for a motion to reconsider. Simply disagreeing with our 
conclusions without showing that we erred as a matter oflaw or pointing to policy that contradicts our 
analysis of the evidence is not a ground to reconsider our decision. See Matter ofO-S-G-, 24 I&NDec. 
56, 58 (BIA 2006). 
The Petitioner's motion does not meet the applicable requirements of a motion to reconsider because 
it did not establish our decision was based on an incorrect application oflaw or policy. See 8 C.F.R 
§ 103 .5(a)(3). As it did not demonstrate that we incorrectly dismissed his second motion, the Petitioner 
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did not establish that it meets the requirements of a motion to reconsider. Therefore, we will dismiss 
the motion to reconsider. 
ORDER: The motion to reconsider is dismissed. 
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