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SustainedEB-2 · Motion to reopen & reconsider

Occupation not stated

Computing, AI & data · decided 2013-02-04 · TSC · FEB042013_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

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

What the AAO decided

  • The appeal will be sustained. · See in text
  • Accordingly, the petition is approved under section 203(b)(3)(A)(i) or 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

Main reasons given

  • Upon review of the entire record, inclu~ing evidence submitted on appeal, 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 March 2, 2011. See in text
Read the full decision (2 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
    . :·-';. · DATE: FEB 0 4 2013 OFFICE: TEXAS SERVICE CENTER · INRE: Petitioner: · Beneficiary: u;s. Depai1inent ~r~_omeland s«uritjr _ U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Avec, 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 ~hat 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 tbe AAO. Please be aware that 8 C:F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 <fays of the decision ~hatthe motion seeks to reconsider or reopen.

    Thank you,

    Nf<l/

    Ron Rosenberg

    Acting Chief, Administrative Appeals Office

    DISCUSSION: The Director, Texas SerVice Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office {AAO) on appeal. The appeal will be sustained. ·

    The petitioner is a computer software development/consultancy company. It seeks to employ the beneficiaripermanently in the United States as a Computer Systems Analyst- IV 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, an ETA Fonn

    9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. The director denied the petition on January 11, 2012.

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

    In pertinent part, section 203(b )(2) of the Act 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.F.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 doctoraldegree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.

    To be eligible for approval, a beneficiary must have all the edueation, 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: 1~77). The priority date of the petition .is March 2, 2011, 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 November 23, 2011.

    Upon review of the entire record, inclu~ing evidence submitted on appeal, 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 March 2, 2011. The beneficiary may be classified as a: professional because he has earned a maSter's degree or foreign equivalent degree and, thus, does qualify for preference visa classification under section 203(b )(2) of the Act. In addition, the beneficiary does meet the job requirements on the labor certification. Accordingly, the petition is approved under section 203(b)(3)(A)(i) or the Act, 8 U.S.C. § 1153(b)(3)(A)(i).

    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.