dismissed H-1B Case: Website Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-NY INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a website design and search engine optimization business, seeks to temporarily employ 
the Beneficiary as a "project manager" under the H-1 B 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 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: (1) the proffered 
position is not a specialty occupation; and (2) the Beneficiary is not qualified to perform the duties 
of a specialty occupation. We dismissed the Petitioner's subsequent appeal, and then affirmed our 
decision when we denied the Petitioner's subsequent combined motion to reopen and motion to 
reconsider. 
The matter is again before us on a second combined motion to reopen and motion to reconsider. In 
its combined motions, the Petitioner submits additional evidence and asserts that our disposition of 
the earlier motions was erroneous. We will deny the motions. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 1 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 1 03.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
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Matter of K-NY Inc. 
II. ANALYSIS 
A. Motion to Reopen 
We will address both the documentation that the motion presents as supporting new facts that would 
be established if the proceedings were reopened and the bearing that such facts would likely have on 
merits of our earlier motion decision. 
The documentation related to new facts includes two submissions dealing with other jobs for which 
the Petitioner has recruited employees. They are (1) a six-page "Career" document about a variety 
of positions and (2) two sheets relating project-manager type positions for which the Petitioner has 
recruited. We presume the Petitioner is attempting to satisfy the third specialty-occupation criterion 
contained at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The "Career" document appears to describe the content of job-recruitment announcements that the 
Petitioner published for the following positions: 
• Project Manager 1 Illinois)- March 2017 
• Support Analyst IT Operations Pennsylvania) -April 2017 
• Junior Application Developer 1 Colorado) - April 2017 
• Junior Web Developer New Jersey)- May 2017 
• Web Developer ( North Carolina)- May 2017 
The two-sheet submission relates the job title, work location, job-type (i.e., "contract," "full-time 
contract to hire," "full-time," or "full-time/permanent"), the hiring qualifications set by the 
Petitioner, and the pay rate for the following jobs for which the Petitioner recruited: 
• Project Manager' Illinois)- March 2016 
• Junior Project Manager~ North Carolina)- May 2016 
• Senior Project Manager California) - July 2016 
• Assistant Operations Project Manager 1 Oregon)- August 2016 
• Senior Program & Project Manager 1 Washington)- January 2017 
• Event Project Manager ' California)- March 2017 
• IT Project Manager Illinois)- May 2017 
The weight of the referenced facts to be established if the proceedings were reopened would be 
negligible. The dates noted in the supporting documents all post-date the November 2015 filing date 
of the petition, and, accordingly, the referenced recruiting actions would not relate to the Petitioner's 
employment practices as of the date of the petition's filing. U.S. Citizenship and Immigration 
Services (USCIS) regulations 
affirmatively require a petitioner to establish eligibility for the benefit 
it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b )(I). A visa petition may not be 
approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
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Matter of K-NY Inc. 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! 
Comm'r 1978). 
Even if that were not the case, these documents would still not establish the proffered position as a 
specialty occupation. First, the record must establish that a petitioner ' s stated degree-requirement is 
not a matter of preference for high-caliber candidates but is necessitated instead by performance 
requirements of the position. See Defensor v. Meissner , 201 F.3d 384, 387-388 (5th Cir. 2000). 
Were we limited solely to reviewing a petitioner 's claimed self-imposed requirements , an 
organization could bring any individual with a bachelor's degree to the United States to perform any 
occupation as long as the petitioning entity created a token degree requirement. !d. Moreover , the 
two sets of job-recruitment documents do not state the credentials of anyone who may actually have 
been hired in response to the recruitment efforts. Nor would these documents overcome the 
inconsistencies we discussed in our earlier decisions. 
For the reasons discussed above, the motion to reopen will be denied. 
B. Motion to Reconsider 
Here we shall separately address each of the Petitioner's contentions regarding our adjudication of 
the evidentiary record that was before us on the prior motion. 
1. Opinions from Persons Presented as Experts 
The Petitioner presents no precedent decision, adopted, decision, regulation, or authoritative policy 
promulgated by USCIS to counter our motion decision 's citation to Matter of Carron Inti., Inc. 
19 I&N Dec. 791, 795 (BIA 1988) for the proposition that, as we put it, "we are not required to 
accept or may give less weight to advisory opinion statements, including those from universities, 
when those opinions are not in accord with other information or [are] in any way questionable. " 
A petitioner must establish that it meets each eligibility requirement of the benefit sought by a 
preponderance of the evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 201 0). In 
other words, a petitioner must show that what it claims is "more likely than not" or "probably" true. 
To determine whether a petitioner has met its burden under the preponderance standard, we consider 
not only the quantity, but also the quality (including relevance, probative value, and credibility) of 
the evidence. ld. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm 'r 1989). Neither pertinent 
statutes nor regulations exempt so-called "expert opinions" from adjudicative evaluation of the 
evidentiary weight of content, to which every other item of documentary evidence is subject. 
2. Professor's Evaluation ofthe Proffered Position 
The Petitioner contests our conclusion that position-evaluation 
document does not demonstrate knowledge about the proffered positiOn sufficient to render a 
persuasive opinion regarding its minimum educational requirements and, therefore, whether it is a 
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Matter of K-NY Inc. 
specialty occupation. The Petitioner advocates an alternative to our adverse determination, arguing 
in conclusory fashion that "the duties alone are sufficient 
for the professor to make a determination," 
and that "the previous appeal demonstrated the equivalency of the duties , making it unnecessary to 
clarify the expert's basis for determining the conclusion." However , the motion does not 
demonstrate either that any of the prior decisions misstated facts in the record, or that any of the 
prior determinations on the position-evaluation were based upon misinterpretation or misapplication 
of any regulation , precedent or adopted decision , or binding policy to the facts before at the time any 
of the decisions were rendered. 
Next, we shall address the motion's statement regarding evaluation of the 
proffered position that "[ s ]ince [his] expertise is acceptable, the AAO should consider the duties the 
professor based his findings upon once more. " 
The qualifications of a person providing an advisory opinion are only one relevant factor towards 
establishing the evidentiary value of his or her conclusions about the educational requirements of a 
proffered position. No less important is the content of that evaluator ' s analysis leading to his or her 
ultimate conclusion, including, for instance , what the evaluation document demonstrates about the 
evaluator's knowledge regarding specific details of the job duties as they would actually be 
performed within the particular context of the petitioner's own business operations, as well as about 
the range and substantive nature of the concrete matters upon which the beneficiary would work. 
Other factors for consideration in determining the probative weight of an advisory opinion on a 
particular proffered position's educational requirements should include the detail, logic, and 
substantive content of the analysis as articulated in the position-evaluation document, and whether 
the evaluation document as a whole persuasively correlates the specific perfom1ance requirements of 
the particular proffered position to the educational credentials that the evaluator opines as necessary. 
In any event, the Petitioner does not sufficiently address, let alone resolve , the numerous deficiencies 
we identified in 
our prior decisions with regard to evaluation. 
In any event, the motion does not establish that our earlier motion's conclusion about the evidentiary 
value of the professor ' s position-evaluation document was erroneous. 
3. Professor ' s Evaluation ofthe Beneficiary's Qualifications 
This aspect of the motion is moot in that a beneficiary's qualifications to serve in a specific 
specialty-occupation position are relevant only when the evidence has established that the position in 
question meets the "specialty occupation" definition at 8 C.F.R. § 214.2(h)(4)(ii) by satisfying one or 
more ofthe specialty-occupation criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Such is not the case here. 
Still, we will address the beneficiary-qualification aspects of the motion in order to identify their 
deficiencies. 
The Petitioner contends that our determination on the beneficiary-qualification issue did not take 
proper account of evaluation document that culminated in his opinion that the 
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Matter of K-NY Inc. 
combination of (1) the Beneficiary's bachelor's degree in mechanical engineering, and (2) his year 
of work experience equates to a U.S. bachelor's degree in management. 
Our motion decision on the beneficiary-qualification issue specified two reasons for not 
reconsidering the adverse determination that we made on this issue in our appeal decision. 
The first reason we offered was that the submissions on motion did not overcome our appeal 
decision's finding that "the record does not demonstrate authority to grant 
college level credit according to the terms at of8 C.F.R. § 214.2(h)(4)(iii)(D)(J)." In this regard, our 
motion decision focused exclusively upon what we saw as a lack of information about 
authority to grant credit for "life experience." Our motion decision articulated the 
motion's deficiencies in this area as follows: 
While we located information on the university's website about the "Accelerated 
Degree Completion Program" which offers students the chance to "build upon [their] 
current education, work experience and life accomplishments to complete [their] 
undergraduate degree,"[ footnote deleted] this information: ( 1) is not described within 
the context of the ' ; (2) does not indicate that "life experience" 
credits are granted based solely on an individual's "training and/or work experience"; 
and (3) does not indicate that students may a obtain a bachelor's degree specifically in 
the field of management through this accelerated program. [Footnote deleted.] The 
Petitioner has not overcome our finding that the record does not demonstrate 
authority to grant college-level credit according to the terms of 
8 C.F.R. § 214.2(h)(4)(iii)(D)(J). 1 
As the motion for reconsideration now before us does not identify any error in the above analysis, it 
provides no grounds for us to reconsider its conclusion, which fatally undermined the Petitioner's 
presentation of beneficiary-qualification document as a proper subject for 
consideration under 8 C.F.R. § 214.2(h)(4)(iii)(D)(J) as being, in that provision's language, "an 
evaluation from an official who has authority to grant college-level credit for training and/or 
experience in the specialty at an accredited college or university which has a program for granting 
such credit based on an individual's training and/or work experience." Consequently, the motion 
before us does not substantiate its claim that we had arbitrarily ignored 
beneficiary-qualification evaluation. 
Even if it did, the Petitioner does not address our second reason for not reconsidering the adverse 
determination we made on the beneficiary-qualification issue. In our decision denying the first 
motion, we stated that "[t]he Petitioner's motion does not address other aspects of our discussion 
regarding the Beneficiary's qualifications for the proffered position." The same is again true. 
1 Deleted footnotes referenced the Internet site of Accelerated Degree Completion 
Program Options, at http://www. ~ 
' (as of July 31 , 2017) . 
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Matter of K-NY Inc. 
4. Prior Approvals 
The claim that we must reconsider our decisions because we did "not speak to the Beneficiary's 
prior approvals in similar companies, in similar positions" even though, the Petitioner asserts, the 
Beneficiary "has held several H-1B positions in management similar to the proffered Project 
Manager role." 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter of Church Scientology 
Int '1, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng 'g, Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987). Furthermore, we are not be bound to follow a contradictory decision of 
a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. 
La. 2000). 
For all of these reasons, the motion does not establish good cause for us to reconsider our decision 
on the prior motion. 
III. CONCLUSION 
The Petitioner has not met the requirements for a motion to reopen or a motion to reconsider. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of K-NY, Inc., ID# 934603 (AAO Dec. 29, 2017)