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SustainedEB-2 · Appeal

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Education · decided 2014-04-01 · NSC · APR012014_01B5203

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

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What the AAO decided

  • The appeal will be sustained . See in text
  • Accordingly, the petition is approved under section 203(b)(2)(A) of the Act, 8 U.S.C. § 1153(b )(2)(A). See in text
  • ORDER: The appeal is sustained, and the petition is approved. See in text

Main reasons given

  • Upon review of the entire record, including evidence submitted on appeal, and in response to a Request for Evidence (RFE) issued by the AAO, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all the education, training, and experience specified on the ETA Form 9089 as of the priority date, April 13, 2012. See in text
Read the full decision (3 pages)

Objections found (0)

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    Full decision

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

    Highlighted: Outcome (3) AAO finding (1)Matter of X citation
    Decision header
    U.S. Department of Homeland Security U.S. Citi zenship and Immigration Services Administrative Appeals Offic e (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services · DATE: APR 0 1 2014 OFFICE: NEBRASKA SERVICE CENTER · INRE: · PETITION: Petitioner: · Beneficiary

    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:

    INSTRUCTIONS:

    Enclosed please find the decision of the Administrative Appeals Office in your case . This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non­ precedent decisions. 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.

    Thank you, y ·-f=::;

    Ron Rosenberg,

    Chief, Administrative Appeals Office www.uscis.gov

    DISCUSSION: The preference visa petition was denied by the Director , Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained .

    The petitioner is an industrial plant and warehouse automation solutions company. It seeks to employ the beneficiary permanently in the United States as an "MES Operations Analyst." The petitioner requests classification of the beneficiary as an advanced degree professional 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, the petition is accompanied by ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the United States Department of Labor (DOL) . The director determined that the petitioner failed to demonstrate that the beneficiary satisfied the minimum level of experience stated on the labor certification. The director denied the petition on May 14, 2013 .

    The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004).

    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. See also 8 C.F.R. § 204.5(k)(1).

    The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:

    [A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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.

    A "profession " is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. " The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."

    The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:

    Section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees, whose services are sought by an employer in the United States. p. 3 (A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or

    (B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.

    In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).

    Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as of the petition's priority date. See Matter of Wing 's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). The priority date of the petition is April 13, 2012, which is the date the labor certification was accepted for processing by the DOL. See 8 C.F.R. § 204.5( d). The Immigrant Petition for Alien Worker (Form I-140) was filed on July 9, 2012.

    Upon review of the entire record, including evidence submitted on appeal, and in response to a Request for Evidence (RFE) issued by the AAO, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all the education, training, and experience specified on the ETA Form 9089 as of the priority date, April 13, 2012.

    Accordingly, the petition is approved under section 203(b)(2)(A) of the Act, 8 U.S.C. § 1153(b )(2)(A).

    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 met that burden.

    ORDER: The appeal is sustained, and the petition is approved.