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MotionEB-2 · Motion to reopen & reconsider

Occupation not stated

Other / unclear · decided 2013-01-14 · TSC · JAN142013_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

5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. See in text

What the AAO decided

  • The motion will be dismissed. See in text
  • Accordingly, the motion will be dismissed and the AAO's decision dated March 28, 2012 will remain. See in text
  • ORDER: The motion is dismissed. See in text

Main reasons given

  • If the petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the wage paid, if any, and the proffered wage. 1 If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, USCIS may also consider the overall magnitude of the petitioner's business activities. See in text
Read the full decision (3 pages)

Objections found (1)

Automated tags. Each shows the sentence that triggered it.

  • (b)(6) Page 3 Regardless, the beneficiary does not have a "United States master's degree or a foreign equivalent degree," and, thus, does not qualify for the preference visa classification under section 203(b )(2) of the Act. · · The petitioner has also failed to establish its ability to pay the proffered wage as of the priority date and Continuing until the beneficiary obtains lawful permanent residence. p. 3

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

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DATE~ Office: TEXAS SERVICE CENTER .

JAN 1 4 2013

IN RE: Petitioner :

Beneficiary:

U.S. Department of Homeland Security

U

.S. Citizenship and Immigration Services

Administrative Appeals Orrice (AAO)

:io Massachusetts Ave., N.W., MS 2090

Washington, DC 20529·2090

U.S. Citizenship and lnunigration

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:

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 funher 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 MQtion, 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 tile 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.

Ron Rosenberg

-Acting Chief , Administrative Appeals Office www.uscis.gov p. 2 it' .. :;;.

. DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center. The petitioner then filed an appeal to the Administrative Appeals Office (AAO) which was dismissed. Counsel to the petitioner filed a motiqn to reconsider the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion will be dismissed.

The petitioner seeks to classify the beneficiary as an alien worker pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § li53(b)(2), as an advanced degree professional. The record of proceeding shows that the Form 1-140 petition was filed January 29, 2009. The director determined that the petitioner had failed to submit the required documentary evidence required per 20 C.F.R. § 656.15(d) and, therefore, that the beneficiary could not be found qualified for a Schedule A occupation. The AAO affirmed the director's decision and . dismissed the appeal according} y.

On motion, counsel restates that his legal assistant admitted to marking Part 2.d of the Form I -140 in error, and that the petitioner intended to seek classification as a multinational executive or manager. The motion shall be dismissed for failing to meet an applicable requirement. Motions to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the AAO's decision was based on an incorrect application of law or policy. 8C.F.R. § 103.5(a)(3). As the motion contains no citation to pertinent precedent decisions nor identifies any error in the AAO decision, it must be dismissed. 8 C.F.R. § 103.5 (a)(4). · Also, the regulation at 8 C.F.R. §§ 103.5(a)(1)(iii) lists the filing requirements for motions to reopen and motions to reconsider. Section 103.5(a)(1)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding." In this matter, the motion does not contain the statement required by 8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, · because the instant motion did not meet the applicable filing requirements listed in 8 C.F.R. § 103.5(a)(1)(iii)(C) and does not meet the requirements of a motion to reconsider, it must be dismissed for these reasons. Finally, the motion must be dismissed as untimely. Motions to reconsider must be filed within 30 days of the decision that the motion seeks to reconsider. 8 C.F.R. § 103.5(a)(1)(i). In this case, the AAO's decision was dated March 28, 2012. The instant motion was filed on May 9, 2012.

Accordingly, b~cause the motion was late, it must be dismissed. 8 C.F.R. § 103.5(a)(4).

Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that burden. The motion will ~e dismissed.

Regardless, the beneficiary does not have a "United States master's degree or a foreign equivalent degree," and, thus, does not qualify for the preference visa classification under section 203(b )(2) of the Act. · ·

The petitioner has also failed to establish its ability to pay the proffered wage as of the priority date and Continuing until the beneficiary obtains lawful permanent residence. See 8 C.P.R. § 204.5(g)(2).

In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether . the petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the wage paid, if any, and the proffered wage. 1 If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, USCIS may also consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm'r 1967).

In the instant case, the petitioner did not submit evidence of its ability to pay the proffered wage in 2009, 2010, 2011, and 2012. Further, the petitioner failed to establish that factors similar to Sonegawa existed in the instant case, which would permit a conclusion that the petitioner had the ability to pay the proffered wage despite its shortfalls in wages paid to ~he beneficiary, net income and net current assets. Accordingly, after considering the totality of the circumstances, the petitioner has also failed to establish · its continuing ~bility to pay the proffered wage to the beneficiary since the priority date.

Accordingly, the motion will be dismissed and the AAO's decision dated March 28, 2012 will remain.

ORDER: The motion is dismissed.