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The motion to reopen was dismissed because the Petitioner failed to present new facts or evidence demonstrating that the Administrative Appeals Office (AAO) erred in its prior decision. The new version of the DOL ETA-9089 (2023) was deemed irrelevant as eligibility is assessed at the time of filing (July 2022), and the original certification explicitly disallowed alternate occupations. The Petitioner's resubmitted letter, which acknowledged the intern position was not substantially comparable, did not constitute new evidence as it was already submitted and considered.

The appeal was dismissed because the Petitioner failed to establish a bona fide intent to employ the Beneficiary at the time the Form I-140 was filed in May 2018, following the sale of the relevant business division in 2017. The record indicated the Petitioner no longer needed web development services and lacked the ability to employ the Beneficiary in the certified role. Legal precedent confirms that portability under section 204(j) does not prevent revocation if the underlying petition was never valid.