remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 6062338 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 2020 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ l 10l(a)(l5)(H)(i)(b) . 
The Vermont Service Center Director approved the petition, then subsequently reopened the petition 
on service motion, and issued a request for evidence (RFE). Ultimately, the Director denied the 
petition after reviewing the Petitioner's response to the RFE, concluding that the Petitioner had not 
demonstrated that the proffered position qualifies as a specialty occupation . The Petitioner filed an 
appeal which we summarily dismissed. The matter is now before us on a combined motion to reopen 
and motion to reconsider. We will dismiss the motions. 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 1 We are 
reopening this matter sua sponte .2 Upon de nova review, the Director's decision to deny the petition 
after the petition was approved is withdrawn. The matter will be remanded to the Director for further 
consideration and action. 
I. MOTION TO REOPEN OR RECONSIDER 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R . § 103.S(a)(l). 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration; (2) 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 of record at the time of the 
initial decision. 8 C.F.R. § 103.5(a)(3). 
1 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
2 See 8 C.F.R. § 103.5(a)(5)(i) . 
The Petitioner filed an appeal of the Director's decision to deny the petition on November 15, 2018. 
On the Form I-290B, Notice of Appeal or Motion, the Petitioner stated that its brief and/or additional 
evidence would be submitted to the Administrative Appeals Office (AAO) within 30 calendar days of 
filing the appeal. We granted the Petitioner's request for an extension to file a brief or additional 
evidence until January 14, 2019. On March 22, 2019, we summarily dismissed the Petitioner's appeal 
because it did not provide a brief and/or additional evidence to the Administrative Appeals Office 
(AAO) as required. 3 
In this combined motion the Petitioner asserts that it forwarded a brief and supporting documents to 
the Phoenix Lockbox on December 18, 2018 and provided FedEx tracking results as proof of delivery. 
The Petitioner also asserts that it forwarded another copy of its brief and supporting documents to the 
AAO on December 27, 2018. However, the Petitioner did not provide evidence, such as common 
carrier tracking results, or other corroborative evidence to establish proof of delivery to the AAO. As 
stated in the Form I-290B Instructions and the AAO Practice Manual, any brief and/or additional 
evidence submitted after the initial filing of the I-290B must be submitted directly to the AAO. If the 
AAO grants additional time to file a brief: then the Petitioner is still required to submit the brief directly 
to the AAO. 4 
Because the evidence is not sufficient to establish that the Petitioner's brief and supporting documents 
were submitted directly to the AAO within the allowable time period, the Petitioner has not overcome 
the basis for the summary dismissal of its appeal. 5 The Petitioner asserts that it timely filed a brief 
and additional evidence directly to the AAO. However, we conclude that our decision to summarily 
dismiss the appeal was proper. The evidence of record is insufficient to grant the motion to reopen. 
Additionally, the Petitioner has not established on motion that our previous decision was incorrect 
based on (1) an incorrect application oflaw or policy, or (2) the evidence ofrecord at the time of the 
decision. Accordingly, the Petitioner has not established a legal basis to reconsider the previous 
decision. Therefore, the Petitioner's combined motions to reopen and reconsider are dismissed. 
II. REVOCATION AUTHORITY 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-lB petition 
pursuant to 8 C.F.R. § 214.2(h)(l l)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(]) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition; or 
(2) The statement of facts contained in the petition ... was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact; or 
( 3) The petitioner violated terms and conditions of the approved petition; or 
3 See 8 C.F.R. § 103.3(a)(l)(v). 
4 See 8 C.F.R. § 103.3(a)(l)(viii). 
5 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 l&N Dec. 369,375 (AAO 2010). 
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( 4) The petitioner violated requirements of section 101 (a)( l 5)(H) of the Act 
or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part .... 
We are reopening this matter sua sponte. 6 We conclude that a remand is warranted in this case because 
the Director's decision to deny the petition does not comport with the regulatory provisions for the 
revocation of H-lB petitions at 8 e.F.R. § 214.2(h)(l l)(iii). USeIS records reflect the following 
procedural history in this matter prior to the Petitioner's appeal of the Director's decision to deny the 
petition: 
1. The Petitioner filed the petition in April 2016. 
2. The Director issued a request for evidence (RFE) in November 2016. 
3. The Petitioner responded to the RFE in January 2017. 
4. The Director approved the petition in March 2017. 
5. In April 2018, the Director reopened the petition on users motion, and issued an 
RFE. 
6. The Petitioner responded to the RFE in July 2018. 
7. In November 2018, the Director denied the petition, concluding that the proffered 
position did not qualify as a specialty occupation. 
The Director's April 2018 RFE was inadequate to notify the Petitioner of her intent to revoke the 
approval of the petition in accordance with the provisions at 8 e.F.R. § 214.2(h)(l l )(iii). Further, 
the Director erred in denying the petition after it was approved. While users may revoke an H-1 B 
petition after it is approved, a director must identify and discuss the specific ground(s) for revocation 
at 8 e.F.R. § 214.2(h)(l l)(iii) upon which he or she based her decision to revoke the petition in a 
revocation notice. Accordingly, we withdraw the Director's denial of the petition and remand the 
matter to the Director for issuance of a new decision based on this petition's record of proceedings. 
The Director may request any additional evidence considered pertinent to the new determination. As 
such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Petitioner's combined motions to reopen and reconsider are dismissed. The 
decision of the Director is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
6 See 8 C.F.R. § 103.S(a)(S)(i). 
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