PetitionLens
All decisions
MotionEB-2 · Motion to reopen & reconsider

Occupation not stated

Other / unclear · decided 2013-05-23 · NSC · MAY232013_02B5203

Official PDF on uscis.gov

Decided under the old NYSDOT test, replaced by Matter of Dhanasar on Dec 27, 2016. Useful for background only.

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The director's decision denying the petition concluded that: • the offered position did not meet the minimum requirements for classification as a member of the professions holding an advanced degree; • the petitioner had not established that the beneficiary possessed the two years of experience and other special requirements set forth on the labor certification; and • the petitioner had not established its continuing ability to pay the proffered wage from the priority date. See in text

What the AAO decided

  • The motion will be dismissed. See in text
  • Accordingly, the motion will be dismissed, the proceedings will not be reopened or reconsidered, and the previous decisions of the director and the AAO will not be disturbed. See in text
  • ORDER: The motions to reopen and reconsider are dismissed. See in text

Main reasons given

  • the offered position did not meet the minimum requirements for classification as a member of the professions holding an advanced degree; See in text
  • the petitioner had not established that the beneficiary possessed the two years of experience and other special requirements set forth on the labor certification; and See in text
  • the petitioner had not established its continuing ability to pay the proffered wage from the priority date. See in text
Read the full decision (3 pages)

Objections found (1)

Automated tags. Each shows the sentence that triggered it.

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (3) AAO finding (3) Tagged objection (1)Matter of X citation
Decision header
Date: MAY 2 3 2013 Office: NEBRASKA SERVICE CENTER · INRE: Petitioner: · Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services FILE: · PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced

Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)

ON BEHALF OF PETITIONER:

SELF REPRESENTED

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

If you believe 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 reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

Ron Rosenberg

Acting Chief, Administrative Appeals Office

DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) dismissed the subsequent appeal. The petitioner filed the instant motion to reopen and a motion to reconsider the AAO's decision. The motion will be dismissed.

The petitioner describes itself as a software development firm. It seeks to employ the beneficiary permanently in the United States as a senior systems analyst pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).

The petition is accompanied by a Form ETA 750, Application for Alien Employment Certification (labor certification), approved by the U.S. Department of Labor. The director's decision denying the petition concluded that:

  • the offered position did not meet the minimum requirements for classification as a member of the professions holding an advanced degree;
  • the petitioner had not established that the beneficiary possessed the two years of experience and other special requirements set forth on the labor certification; and
  • the petitioner had not established its continuing ability to pay the proffered wage from the priority date.

The AAO affirmed the director's decision on appeal.

Counsel's brief in support of the motion is accompanied by evidence of the petitioner's ability to pay the proffered wage since the priority date, the beneficiary's work experience, and copies of the recruitment materials generated during the labor certification process as evidence of the minimum requirements of the offered position.

The regulation at 8 C.P.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 1 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.P.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. p. 3 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.

On motion to reconsider, the petitioner failed to support the motion with any pertinent precedent decisions establishing that the AAO's decision was based on an incorrect application of law or policy. Therefore, the motion to reconsider will be dismissed for failing to meet applicable requirements. 8 C.F.R. § 103.5(a)(4).

The regulation at 8 C.F.R. § 103.5(a)(2) states in pertinent part:

Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits 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. 2 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. 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).

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 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 motions to reopen and reconsider are dismissed.