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MotionEB-2 · Appeal

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Other / unclear · decided 2013-01-28 · TSC · JAN282013_05B5203

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 determined that the ETA Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree or an alien of exceptional ability. See in text

What the AAO decided

  • The appeal will be rejected. See in text
  • Therefore, as the appeal was not properly filed, it will be rejected.2 ORDER:. See in text
  • The appeal is rejected. See in text
Read the full decision (3 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

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

    Highlighted: Outcome (3)Matter of X citation
    Decision header
    Date: JAN 2 8 2013 Office: TEXAS SERVICE CENTER · INRE: Petitioner: · Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) , 20 Massachusetts Ave., N.W., MS 2090 Washineton . DC 20529-2090 U.S. CitizenShip and l~gration Services FILE: · PETITION: Immigrant Petition for Alien Worker as a Professional 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 further inquiry that you might have concerning your case must be made to that office. {i'pfJY.fipu,

    ~(llalsenberg

    Acting Chief, Administrative Appeals Office

    Ww:w.uscis;gov,

    DISCUSSION: On June 13, 2012, the Administrative Appeals O:{fice (AAO) dismissed an appeal to the denial of an employment-based preference visa petition by the Director, Texas Service Center. The matter is now before the AAO again on appeal. The appeal will be rejected.

    . I

    The petitioner is a church. It seeks to classify the beneficiary as a radio minister pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2) as a member of the professions holding an advanced degree. As required by statute, the petition was filed with an ETA Form 9089, Application for Permanent Employment Application, approved by the Department of Labor (DOL). The director determined that the ETA Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree or an alien of exceptional ability. 8 C.F.R. § 204.5(k)(4). The director denied the petition accordingly.

    Counsel subsequently filed a timely appeal on the petitioner's behalf on March 1, 2010. The AAO upheld the director's determination that the ETA Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree or an alien of exceptional ability and dismissed the appeal on June 13, 2012. The cover page of the AAO's decision instructed the petitioner that it may file either a motion to reopen or a motion to reconsider the decision pursuant to the requirements found at 8 C.F.R. § 103.5, and that any motion must be filed with the office that originally decided the case within 30 days of the decision that the motion seeks to reconsider or reopen as required by.8 C.F.R. § 103.5(a)(1)(i).

    The petitioner subsequently attempted to file another appeal on July 9, 2012. The AAO, however, does not exercise appellate jurisdiction over its own decisions. The AAO only exercises appellate jurisdiction over matters that were specifically listed at 8 C.F.R. § 103.1(f)(3)(iii) (as· in effect on February 28, 2003). 1 For instance, in the event that a petitioner disagrees with an AAO decision, the petitioner can file a motion to reopen or a motion to reconsider in accordance with 8 C.F.R. § 103.5. In this matter, the petitioner did not check box D ("I am filing a motion to reopen a decision"), box E ("I am filing a motion to reconsider a decision"), or box F ("I am filing a motion to reopen and a motion to reconsider a decision") on the Form I-290B, Notice of Appeal or Motion. In this case, the petitioner checked box A ("I am filing an appeal"), instead. Therefore, the appeal is improperly filed and must be rejected on this basis pursuant to 8 C.F.R. § 103.3(a)(2)(v)(A)(i).

    (b)(6)Page 3

    Therefore, as the appeal was not properly filed, it will be rejected.2 ORDER:. The appeal is rejected. The AAO's previous decision dated June 13, 2012 shall not be disturbed.

    2 It is noted that, if the. AAO were to consider the appeal to be a motion to reopen or reconsider, it would dismiss the motion for failing to meet applicable requirements. 8 C.F.R. § 103.5(a)(4). The motion does not contain any new facts supported by affidavits or documentary evidence, and it thus I . . .