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. 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,
Gf2D
Ron Rosenberg
Acting Chief, Administrative Appeals Office · www.uscis.gov
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DISCUSSION: The preference 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 sustained. The petitioner is a medical practice. It seeks to employ the beneficiary permanently in the United States as a medical doctor 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 (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, approved by the United States Department of Labor (DOL). The director determined that the petitioner failed establish its ability to pay the proffered wage. The director denied the· petition on April 30; 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, 8 U.S.C. § 1153(b)(2), 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 acaqemic 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 doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d. The regulation at 8 C.F.R. § 204.5(g)(2) states:
Ability of prospective employer to pay wage. Any petitiOn filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date .is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. In a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a· financial officer of the organization which establishes the prospective employer 's ability · to pay the proffered wage. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service.
The record contains evidence of the petitioner's 2011 federal inco~e tax return, wage information for 2011 and 2012, and the beneficiary's Form W-2 from the petitioner. Therefore, upon review of the record at hand, it appears more likely than not that the petitioner is a viable company with the ability to pay the proffered wage from November 17, . 2011 and forward. The petitioner has been · paying the proffered wage of $150,000 per year (or $6,250 twice per month) beginning on the priority date, as established by payroll records submitted as evidence. If a petitioner establishes that it employed the beneficiary at a salary equal to or greater than the proffered wage, the evidence will p. 3 .. r;_.
Page '3 be considered prima facie proof of the petitioner's ability to pay the wage. Thus, it is concluded that the petitioner has established that it had the continuing ability to pay the proffered wage. 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.
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