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SustainedEB-2 · Appeal

Occupation not stated

Other / unclear · decided 2013-08-22 · TSC · AUG222013_03B5203

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

  • Accordingly, the ditectot' s decision is withdrawn and petition is approved Ullder section 203(b)(3)(A)(i) of the Act, 8 U.S.C. § 1153(b)(3)(A)(i). See in text
  • ORDER: The appeal is sustained, and the petition is approved. See in text
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    Full decision

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    Highlighted: Outcome (2)Matter of X citation
    Decision header
    Date: AUG 2 2 2013 Office: TEXAS SERVICE CENTER · INRE: Petitioner: BenefiCiary: V,~. ~~pa~e-~t of Hom~l!lJld Security O.S. Citizenship and lmmigraiion Servi_ces Administrative Appeals offlce(AAO) 20 Massachilsetts Ave., N,W., MS 2090 Washington, DC 20529-2090 U.S~ Citizenship and Immigration Services FILE:

    .PETmON: 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 aM Na.tionaUtyAct, 8 U.S.C. § ll53(b)(2)

    ON BEHALF OF PETITIONER:

    INSTRUCTIONS:

    Enclosed please find the decision of the Administrative Appeals Office (AAO) iQ yo\n ca.se. This is a non­ precedent decision. The AAO does not announce ·new constructions of law nor establish agency · policy through non-precedent decisions.

    Thank you, . , ffr'ltd-~ li M lc~wk_ _

    Ron Rosenberg

    Chief, Administrative

    AppeaJS Office

    DISCUSSION: The pr~ference visa petition was denied by the Director, Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sust~ineq and the petition will be ~pproved.

    The petitioner is an accounting firm. It seeks to employ the beneficiary pemtanently in, tb~ l}I}ited States as an auditor per section 203(b)(2) of the lmifiigration and Nationality Act (the Act), 8 U.S. C. § 1153(b)(2). As required by statute, the petition is accompanied by an ETA Forlll 9089, Application for Permanent Employm~nt Certification, approved by the United States Department -of Labor (DOL). rhe director d~termined that the petitioner fCiiled to demo.nstr~te its ability to pay the · proffered wage of $71,593.60 pet year as of the priority date of June 22, 2012 onwards. The director denied the petition on November 2, 2012.

    The appeiD is properly filed aud mctkes a specific allegation of error in law or fact. The procedural history in this case i~ documented by the record and incorporated into the decision. further elaboration of the procedural history will be made mily as necessary.

    The AAO_ conducts appellate review on a de novo basis. See Soltane v. lJOJ, 381 F.3d 143, 145 (3d Cir. 4004), The AAO co11siders aU pertinent evidence in the record, i.nciuding new ·evidence properly submitted upon appea1.1

    The petitioner lllust establish that its job offer to the beneficiary is a realistic one. The petitioner's ability to pay the proffered wage is an essential element iii evaluating Whether a job offer is realistic. See Matter of Great Wall, 16 i&N Dec. 142 (Acting Reg. Comm. 1977). the regulation at 8 C.P.R. § 204.5(g)(2) states, in part:

    Ability of prospective employer to pay wage. Any petition filed by or for an employment-based illlmigrant which requires art offer of employment must be accompanied by evidence that the prospective United States employer has the ability' to PCiY the proffered wage. The petitioner rn11st demonstrate this ability atthe time the priority date is established and continuing until the beneficiary obtains l_~wful petlllanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.

    The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on tlie priority date, which is the date the ETA Form 9089 was accepted for processing by any office within tbe employment system of th~ DOL. See 8 C.P.R. § 204.5( d). The prionty date of the instant petition is June 22, 2012.

    Upon review of the entire record, including additional evidence submitted on appeal and in response to a request for evidence issued by the AAO, it is covcluded that the petitioner hi:tS est~bllshed, by a preponderance of the evidence, that it· possessed the continuing ability to pay the proffered wage beginning on the priority date of the petition. Accordingly, the ditectot' s decision is withdrawn and petition is approved Ullder section 203(b)(3)(A)(i) of the Act, 8 U.S.C. § 1153(b)(3)(A)(i). The bu,rden of proof in these proceedings rests solely with the petitio:ner, SectioQ. 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.