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DismissedEB-2 · Motion to reopen & reconsider

Occupation not stated

Other / unclear · decided 2014-01-03 · TSC · JAN032014_07B5203

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.

Summary sentence

The director denied the petition after concluding that the petitioner had failed to establish that the beneficiary met the minimum qualifications for the offered position, as set forth in Part H. See in text

Read the full decision (3 pages)

Objections found (1)

Automated tags. Each shows the sentence that triggered it.

  • It also asked for evidence explaining the discrepancy between the wage the petitioner had indicated on the labor certification and that reflected in the posting notice and job announcement for the offered position. See in text (p. 2)

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Tagged objection (1)Matter of X citation
Decision header
DATE: JAN 0 3 2014 · IN RE: Petitioner: · Beneficiary: · OFFICE: TEXAS SERVICE CENTER U.S. Department of Homeland Security U.S. Citiz enship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts 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) 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 (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appe al or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:/Jwww.uscis.gov /forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103 .5. Do not file a motion directly with the AAO.

Thank you,

Ron Rosenberg

Chief, Administrative Appeals Office www.uscis.gov

DISCUSSION: The Director, Texas Service Center (director), denied the Form I-140, Immigrant Petition for Alien Worker and the petitioner appealed the decision to the Administrative Appeals Office (AAO). The appeal will be summarily dismissed pursuant to the regulation at 8 C.P.R. § 103.2(b )(13)(i).

The petitioner describes itself as a software development and consultancy business. It seeks to employ the beneficiary permanently in the United States as a The petitioner requests classification of the beneficiary 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)(A). The petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL) .

The director denied the petition after concluding that the petitioner had failed to establish that the beneficiary met the minimum qualifications for the offered position, as set forth in Part H. of the labor certification. He further concluded that the petitioner had submitted falsified documents in order to obtain a benefit under the Act and invalidated the labor certification pursuant to 20 C.P.R. § 656.30( d). The director also found the beneficiary to have submitted false evidence and, therefore, to be subject to the grounds of inadmissibility at section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) in any future proceeding.

The record shows that the appeal is properly filed and makes a specific allegation of error in law or fact. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary.

The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3rd Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal. 1

On October 30, 2013 , the AAO sent the petitioner a Notice of Intent to Dismiss and Request for Evidence (NOID/RFE). The NOID/RFE sought additional evidence relating to the petitioner ' s ability to pay the proffered wage to the beneficiary and to the other individuals for whom it had filed Form I-140 petitions that were approved or pending as ofthe petition ' s priority date. It also asked for evidence explaining the discrepancy between the wage the petitioner had indicated on the labor certification and that reflected in the posting notice and job announcement for the offered position.Inconsistencies in the record The NOID/RFE further notified the petitioner of the inconsistent claims regarding the beneficiary ' s employment experience found in the record.

The October 30, 2013 notice allowed the petitioner 30 days in which to submit a response. The AAO informed the petitioner that failure to respond to the notice would result in a dismissal of the appeal pursuant to the regulation at 8 C.P.R.§ 103.2(b)(13)(i).

As of the date of this decision, the petitioner has not responded to the NOID/RFE. Therefore, the appeal will be summarily dismissed without further discussion. See 8 C.F.R. § 103.2(b )(13)(i). The AAO will also dismiss the appeal based on the petitioner's failure to submit the requested evidence , which has prevented the AAO from pursuing