DATE:
FEB 0 ~ 2014
INRE: Petitioner:
Beneficiary:
OFFICE: TEXAS SERVICE CENTER
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Offic e (AAO)
20 Massac husetts Ave. , 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)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) ON BEHALF OF PETITIONER:
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 that 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 the AAO. Please be aware that 8 C.F .R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.
Thank you,
/u~--to:~osenberg
Chief, Administrative Appeals Office www. uscis.gov
DISCUSSION: The Director, Texas Service Center (director), denied the immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed as abandoned under the regulation at 8 C.F.R. § 103.2(b )(13)(i).
The petitioner provides physical therapy and rehabilitation services. It seeks to permanently employ the beneficiary in the United States as a director of rehabilitation. The petitioner requests classification of the beneficiary as a member of the professions holding an advanced degree under section 203(b )(2)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A). An ETA Form 9089, Application for Permanent Employment Certification, approved by the U.S. Department of Labor, accompanies the petition.
The director found that the petitioner failed to establish its continuing ability to pay the beneficiary's proffered wage from the petition's priority date onward. Accordingly, on April 19, 2013, the director denied the petition.
The record shows that the appeal is properly filed and makes a specific allegation of error in law or fact. The record contains the procedural history of the case, which is incorporated into the decision. The AAO will elaborate on the procedural history only as necessary.
The AAO conducts appellate review on a de novo basis. See Soltane v. Dep 't of Justice, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence proper! y submitted on appeal. 1
On November 27, 2013, the AAO sent the petitioner a Notice of Intent to Dismiss the appeal and Notice of Derogatory Information, with a copy to counsel of record. The notice informed the petitioner that the AAO intended to dismiss its appeal unless it provided additional evidence of its ability to pay the proffered wage and of the beneficiary's qualifications for the offered position. The notice provided the petitioner 30 days in which to respond. The AAO informed the petitioner that failure to timely respond to the notice would result in dismissal of its appeal.
As of the date of this decision, the petitioner has not responded to the AAO's notice. A failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying a petition. See 8 C.F.R. § 103.2(b)(14). Because the petitioner failed to timely respond to the notice, the AAO will summarily dismiss the appeal as abandoned under the regulation at 8 C.F.R. § 103.2(b )(13)(i).
The instructions to Form I-290B, Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1), allow the submission of additional evidence on appeal. The record in the instant case provides no reason to disregard any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988).
In visa petltwn proceedings, a pet1t10ner bears the burden of establishing eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.