Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § l1$3(b)(2) ON B~HALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the d~cisioii of the Adnlinistrative Appeals Office in your case. This is a non precedent decision. The AAO does not announce Qew COIJ.stnrctions of law nor e~tablish agency policy through non-precedent decisions.
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Thank you, h.#'~~ ~o~enberg
Chief, Administrative Appeals Office
1V\V\V.uscis~gov
NON-PRECEDENT fJEClSION
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center (the. director), and is now before the Administrative Appeals Office (AAO) on appeal. the · director's decision will be withdrawn and the appeal will be .sustained, The petition will be approved. ·
The petitioner is an Italian ice cream fn!,nchise business. It seeks to employ the beneficiary permanently in tf!e United States <!S a.n intem(lliomtl mMket rese¥ch analyst pursuant to section 203(b)(2) of the lininigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), As required by statute, the petition is accompanied by an ETA Form -9089, Application for Permanent Employment Certification (labor certification), certified by the U.S. Department of Labor (DOL). The director's decisioQ. concluded th;:tt the petitioner did not establish that it had the -ability to pay the proffered wage.
The AAO conducts appellate review on a de. novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the ETA Form 9089, Application for Permanent Employment Certificat1on, was accepted . for processing by any office within the employment system of the POL. S~e 8 C.F.R. § 204.5(d). The petitioner IIJJ!St alsod~m.onstrate that, on the priority date, the beneficiary had the qualifications stated on its ETA Form 9089, Application for Permanent Employment Certification, as certified by the DOL and submitted with. the instant petition. Matter ofWing's TeaHouse, 16 I&N Dec. 158 (Act. Re.g~ Comm.l977).
Upon review of the enthe record, includi.Qg evidence sub~nitted on appeal and in resp<)nse to a Request fot Evidence issued by the AAO, the petitioner has established -tha.t it is more likely than not that it has the continuing ability to pay the proffered wage as of the priority date. The record also reflects that it is more likely than not that the beneficiary posSesses the minimum education and experience required for the proffered position as stated on the labor certification. thus, the . petitioner has overcome the ground for denial of the petition in t_he director's decision. Accordingly, the director's decision will be withdrawn. Accordingly; the petition is approved under section 203(b )(2) of the Act. ·
As always in visa petition proceedings, the burden of proof rests enthely with the petitioner. See section 2.91 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Th,e petitioner }las m.et that burden, .
ORDER: The director's decision dated December 11, 2012 is withdrawn. The appeal is s\istained. The petition is approved. · ·