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,
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Ron Rosenberg
Acting Chief, Administrative Appeals Office
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 and the petition approved.
The petitioner is a medical office that seeks to employ the beneficiary permanently in the United States as a physician. 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 had failed to submit evidence establishing that it had the continuing ability to pay the proffered wage to the beneficiary since the priority date and denied the petition accordingly.
As set forth in the director's denial issued on July 13, 2012, the sole issue to be considered in this case is whether or not the petitioner has the continuing ability to pay the proffered wage to the beneficiary since the priority date.
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (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 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 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 in pertinent part:
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.
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 was accepted for processing by any office within . the employment system of the DOL. See 8 C.F.R. § 204.5(d).
Here, the ETA Form 9089 was accepted on May 27, 2011. The proffered wage as stated on the ETA Form 9089 is $130,000.00 annually.
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The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.1 ·
The record contains the petitioner's Form 1120S, U.S. Income Tax Return for an S Corporation, for 2011, and affidavits from two of the petitioner's officers.
An examination of the evidence in the record establishes that the petitioner more likely than not has the continuing ability to pay the proffered wage of $130,000.00. Therefore, the AAO is persuaded that the petitioner has the continuing ability to pay the salary offered as of the priority date. 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 director's decision dated July 13, 2012· is withdrawn. The appeal is sustained, and the petition is approved.