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 is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. Thank you,
~fnberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (the director) and is now before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn and the appeal will be sustained. The petition will be approved. The petitioner is a software development and testing business. It seeks to employ the beneficiary permanently in the United States as a lead software engineer pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), certified by the U.S. Department of Labor (DOL). The director 's decision concluded that the petitioner did not establish that the beneficiary met the minimum educational requirements as stated on the labor certification.
The record shows that the appeal is properly filed, timely 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. We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). We consider all pertinent evidence in the record, including new evidence properly submitted upon appeal.1
Section 203(b )(2) of the Act 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.P.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 beneficiary must meet all of the requirements of the offered position set forth on the labor certification by the priority date of the petition. 8 C.P.R. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). The priority date of the petition is December 17, 2012, which is the date the labor certification was accepted for processing by the DOL. See 8 C.P.R. § 204.5(d). The Immigrant Petition for Alien Worker (Form 1-140) was filed on April23, 2014.
Upon review of the entire record, including evidence submitted on appeal and in response to OJ.lr April 10, 2015 Request for Evidence (RFE), we conclude that the petitioner has established that the beneficiary meets the minimum education requirements of the labor certification as of the December 17, The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988).
2012 priority date. Further, the petitioner has established its continuing ability to pay the proffered wage. Accordingly, the petition is approved under section 203(b )(2) of the Act.
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). The petitioner has met that burden.
ORDER: The director's decision dated November 13, 2014 is withdrawn. The appeal is sustained. The petition is approved.