The Petitioner, a home health care services business, seeks to employ the Beneficiary as a marketing specialist. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director, Nebraska Service Center, denied the petition, concluding that the Petitioner had not established that the Beneficiary had the required experience for the position offered and that the position offered does not constitute a bona.fide job offer. The Director concluded that the Petitioner materially misrepresented information on the ETA Form 9089, Application for Permanent Employment Certification (labor certification) by not disclosing that the Beneficiary has a familial relationship with at least one, if not more, of the Petitioner's business officers. Accordingly, the Director denied the petition and invalidated the labor certification.
The Petitioner appealed the matter to us, and we summarily dismissed the appeal under 8 C.F.R. § 103.3(a)(l )(v) because the Petitioner had not identified specifically any erroneous conclusion of The matte~ is now before us on a motion to reopen and reconsider. On motion, the Petitioner states that it has the ability to pay the proffered wage and that, even though it was originally licensed to conduct business in the state ofNevada, it is authorized to do business in California.
Upon review, we will deny the motion to reopen and reconsider.
In summarily dismissing the appeal, we noted that the Petitioner did not submit a brief on appeal even though it indicated that it would submit a brief within 30 days of filing the Form 1-2908, Notice of Appeal or Motion. law or statement of fact for the appeal.
I
Matter C!fS-C-S-A-S-, Inc.
A. Requirements for Motions by a Petitioner
Law
The provision at 8 C.F.R. § 103.5(a)(l)(i) limits a U.S. Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or reconsider the decision to instances where "proper cause" has been shown for such action.
Thus, to merit reopening or reconsideration, the submission must not only meet the formal requirements for filing (such as, for instance, submission of a Form 1-2908, Notice of Appeal or Motion, that is properly completed and signed, and accompanied by the correct fee), but the Petitioner must also show proper cause for granting the motion. As stated in the provision at 8 C.F.R. § 103.5(a)(4), "Processing motions in proceedings before the Service," "[a] motion that does not meet applicable requirements shall be dismissed."
B. Requirements for Motions to Reconsider
The regulation at 8 C.F.R. § 103.5(a)(3), "Requirements for motion to reconsider," states: A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must [(3)], when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.
These provisions are augmented by the related instruction at Part 4 of the Form 1-2908, which states: "Motion to Reconsider: The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions when filed and must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of The regulation at 8 C.F.R. § 103.2(a)(1) states in pertinent part :
Every benefit request or other document submitted to DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR chapter 1 to the contrary, and such instructions are incorporated into the regulations requiring its submission. record at the time of decision."
A motion to reconsider contests the correctness of the prior decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 8 C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2).
A motion to reconsider should not be used to raise a legal argument that could have been raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991) ("Arguments for consideration on appeal should all be submitted at one time, rather than in piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow from new law or a de novo legal determination that could not have been addressed by the affected party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a similar scheme provided at 8 C.F.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 171-72 (1st Cir. 2013). Further, the reiteration of previous arguments or general allegations of error in the prior decision will not suffice. Instead, the affected party must state the specific factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision. See Matter of0-S-G-, 24 I&N Dec. at 60.
C. Requirements for Motions to Reopen
The regulation at 8 C.F.R. § 103.5(a)(2), "Requirements for motion to reopen," states: "A motion to reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be supported by affidavits or other documentary evidence."
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: "Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or documentary evidence demonstrating eligibility at the time the underlying petition or application was filed."
Further, the new facts must possess such significance that, "ifproceedings ... were reopened, with all the attendant delays, the new evidence offered would likely change the result in the case." Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 (1Oth Cir. 2013).
Analysis
A. Motion to Reconsider
A motion to reconsider must state the reasons for reconsideration and be supported by citations to pertinent statutes, regulations, and/or precedent decisions to establish that the decision was based on an incorrect application of law or 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. See 8 C.F.R. § 103.5(a)(3) (detailing the requirements for a motion to reconsider).
Here, the Petitioner has not provided any citations to statutes, regulations, or precedent decisions to establish that we erred in summarily dismissing the appeal or that the Director's decision was incorrect based on the evidence of record. Therefore, we will deny the Petitioner's motion to reconsider.
B. Motion to Reopen
A motion to reopen must state the new facts to be provided in the reopened proceeding and must be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). Any new facts submitted must also be of such significance that they would likely change the outcome of the case.Inconsistencies in the record
As stated above, the Director denied the petition because the Petitioner had not established: (1) that the Beneficiary possessed the required experience required on the labor certification due to discrepancies regarding the Beneficiary's experience with in the Philippines; and (2) that the position offered constituted a bona fide job offer. In addition, the Director invalidated the labor certification, concluding that the Petitioner materially misrepresented Part C.9 of the labor certification by not disclosing that the Beneficiary has a familial relationship with the Petitioner' s business officers.
In this case, as will be discussed below, we find that the information submitted'on motion is not supported by independent documentary evidence that would change the outcome of the case. The Petitioner has not provided any evidence to demonstrate that we erred in summarily dismissing the appeal. We further note that the Petitioner has not submitted evidence .to overcome the Director's decision. On motion, the Petitioner only addresses its ability to pay the proffered wage, but this issueisnotpartoftheDirector'sdecisiondenyingthepetition. ThePetitionerhasnotsubmittedany evidence to overcome the Director's decision regarding the Beneficiary's employment experience or the bonafide job offer issue.
1. The Beneficiary's Employment Experience
The labor certification in the record requires that the Beneficiary have 60 months of experience in the job offered as a marketing specialist. The Director noted discrepancies in the record between the Beneficiary's employment experience with as stated in Park K of the labor certification, in Part B of an uncertified Form ETA 750, and in an experience letter in the record from The Petitioner has not provided any additional evidence to resolve this ISSUe.
2. TheExistenceofaBonaFideJobOffer
The petition must be supported by a bona fide job offer. The evidence in the record demonstrates that the Beneficiary ,is the mother-in-law of the Petitioner's president. Part C.9 of the labor certification asks, "Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, p. 5 stockholders, partners, corporate officers, incorporators, and the alien?" The Petitioner responded "no" to this question. The record contains a letter from the Petitioner's President/VP Operations, indicating, "Though the Beneficiary is the mother-in-law ofthe President ofthe company, she has no ownership of the company." Whether the Beneficiary has ownership in the company is not the only factor to consider in' establishing the existence of a bonafide job offer. ' Under 20 C.F.R. §§ 626.20(c)(8) and 656.3, the Petitioner must demonstrate that a valid employment relationship exists, and that a bona .fide job opportunity is available to U.S. workers. See also 20 C.F.R. § 656.17(1); Matter of Amger Corp., 87-INA-545 (BALCA 1987). Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Comm'r 1986), quoted an advisory opinion from the Chief of Department of Labor's Division of Foreign Labor Certification as follows:
The regulations require a 'job opportunity' to be 'clearly open.' Requiring the job opportunity to be bona fide adds no substance to the regulations, but simply clarifies that the job must truly exist and not merely exist on paper. The administrative interpretation thus advances the purpose of regulation 656.20(c)(8). Likewise requiring the job opportunity to be bona fide clarifies that a true opening must exist, and not merely the functional equivalent of self-employment. Thus, the administrative construction advances the purpose of regulations 656.20.
Id. at 405. In determining whether a bona .fide job opportunity exists, adjudicators must consider multiple factors, including but not limited to, whether a beneficiary:
- Is in a position to control or influence hiring decisions regarding the offered position;
- Is related to corporate directors, officers, or employees;
- Incorporated or founded the company;
- Has an ownership interest in the company;
- Is involved in the management of the company;
- Sits on its board of directors;
- Is one of a small group of employees; and
- Has qualifications matching specialized or unusual job duties or requirements stated in the labor certification.
Modular Container Systems, Inc., 1989-INA-228, *8 (BALCA Jul. 16, 1991) (en bane); 20 C.F.R. § 656.17(1) (describing the documents required to establish the existence of a bona fide job opportunity). Here, the Beneficiary's familial relationship calls into question whether there is a bona .fide job offer. The Petitioner has not submitted any evidence to address or resolve this issue on motion. As the Petitioner has not submitted any documentary evidence to overcome our prior decision or to address the reasons for denial, the motion to reopen must be denied.
Conclusion
The motion to reopen and reconsider is denied for the above stated reasons. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner has not met that burden.
ORDER: The motion to reopen is denied.
FURTHER ORDER: The motion to reconsider is denied.
Cite as Matter ofS-C-S-A-S-, Inc., ID# 161573 (AAO Jan. 26, 2017)