Degree or an Alien of Exceptional Anility Pursuant to Section 203(o)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. Allof .the documents related to this maHer have oeen returned to the office that originally decided your case. Please he advised that any further inquiry that you might have concerning your case must be made to that office. If you oelieve the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopcn in accordance with thc instructions on Form 1-2908, Notice . of Appeal or Motion, with a fcc of $()~() - The specific rcquirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file an)' motion directly with the AAO. Please he aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to he fikl.l v.·ithin 30 days of the decision that the motion seeks to reconsider or reopen.
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Acting Chief, Administrative Appeals Office www.uscis.gov p. 2 j
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The petitioner appealed this denial to the Administrative Appeals Office {AAO), and, on August 5, 2011, the AAO dismissed the appeal. Counsel filed a motion to reopen and a. motion to reconsider (MTR) the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion will be dismissed.
The petitioner is a computer consulting business. It seeks to employ the beneficiary permanently in the United States as a software engineer pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. ~ 1153(b)(2). As required by statute, a Fonn ETA 750, Application for Alien Employment Certification approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director detennined that the beneficiary did not satisfy the minimum level of education stated on the alien employment certification. Specifically, the director determined that the beneficiary did not possess a Master of Science in computer science, math, or engineering . The AAO affirmed this determination on appeal and, in the alternative, noted that the beneficiary did not have a bachelor's degree equivalent and five years of progressive experience to the extent this could be considered equivalent to a U.S. master's degree.Degree not shown to be a U.S. advanced degree equivalent
In pertinent part, section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States. An advanced degree is a United States academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R . § 204.5(k)(2). The regulation further states: "A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d. The Form ETA 750 states the minimum requirements for the job offered is a Master of Science in computer science, math, or engineering and one year of experience in the job offered. The AAO concluded that the beneficiary's education is more likely than not comparable to a bachelor's degree in the United States. The AAO reviewed the record to determine whether the beneficiary has the required five years of progressive post-baccalaureate experience. The AAO concluded that the beneficiary did not have the required five years of progressive experience in the specialty. The regulation at 8 C.F.R. § 103.5(a)(3) states:
Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or [U.S. Citizenship and Immigration Services (USCIS)] policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.
Counsel does not submit any document that would . meet the requirements of a motion to reconsider. Counsel does not state any reasons for reconsideration nor cite any precedent decisions in support of a motion to reconsider. Counsel does not argue that the previous decisions were based on an incorrect p. 3 (b)(6)Page 3 application of law or USCIS policy. Therefore, the motion does not meet the requirements for reconsideration.
The regulation at 8 C.F.R. § 103.5(a)(2) states in pertinent part:
Requiremellls for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened . proceeding and be supported by a,ffidavits or other documentary evidence. . . . "
A motion to reopen must state the new facts to be proved in the reopened proceeding and be ·supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain meaning of "new," a new fact is found to be evidence that was not available and could not have been discovered or presented in the previous proceeding. 1 A review of the evidence that the petitioner submits on motion reveals no fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2). All evidence submitted was previously available and could have been discovered or presented in the previous proceeding. As the petitioner was previously put on notice and provided with a reasonable opportunity to provide the required evidence, the evidence submitted on motion will not be considered "new" and will not be considered a proper basis for a motion to reopen. Regardless, no evidence was submitted on appeal which pertains to the beneficiary's degree. The assertions of counsel do not constitute evidence.Claims not backed by documents Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
It is noted that the Form ETA 750 requires a master's degree. The labor certification does not permit this unambiguous requirement to be met by combining a bachelor's degree with five years of experience . See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Comm ' r 1986)(USCIS may not ignore a term on ~ labor certification, nor may it impose additional qualifications). Accordingly, the fact that the beneficiary's foreign education is likely equivalent to a U.S. bachelor's, no amount of experience would permit him to\qualify for the instant position, which clearly requires a master's degree. Counsel appears to agree on motion that the beneficiary's education is comparable to a U.S. bachelor's degree.
Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314 , 323 . (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden. Accordingly , the motion will be 1 The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found, or learned <new evidence> . . . ." WEBSTER'S NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (1984) (emphasis in original). p. 4 dismissed, the proceedings will not be reopened or reconsidered, and the previous decisions of the director and the AAO will not be disturbed.
ORDER: The motion is dismissed.