Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree 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 (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 Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO .
Thank you,
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Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
NON-PRECEDENT DECISION
DISCUSSION: The Director, Nebraska Service Center (the director), denied the immigrant visa petition and the Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the AAO on a motion to reopen or reconsider. The motion will be summarily dismissed as abandoned pursuant to 8 C.F.R. § 103.2(b )(13)(i).
The petitioner describes itself as a photovoltaic system installer. It seeks to permanently employ the beneficiary in the United States as an electrical engineering manager. The petitioner requests classification of the beneficiary as a member of the professions holding an advanced degree pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2). The petition is accompanied by a labor certification approved by the U.S. Department of Labor.
The director's decision denying the petition concluded that the petitioner did not have the ability to pay the proffered wage as of the priority date. The AAO affirmed the director's decision and also found that the petitioner did not establish that the beneficiary qualified for the proffered position. The record shows that the motions are properly filed, timely and make 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 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon motion. 1
On May 31, 2013, the AAO sent the petitioner a notice of intent to dismiss (NOID) the motion with a copy to counsel of record. The AAO found that the petitioner's business was suspended and that no bona fide job offer existed. The NOID allowed the petitioner 30 days in which to submit a response. The AAO informed the petitioner that failure to respond to the NOID would result in a dismissal of the motion. As of the date of this decision, the petitioner has not responded to the AAO's NOID. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). As the petitioner failed to respond to the NOID, the motion will be summarily dismissed as abandoned pursuant to 8 C.F.R. § 103.2(b )(13)(i).
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The motion is summarily dismissed.