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:
SELF-REPRESENTED
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. · Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained and the petition will be approved.
The petitioner is a public charter school in Wisconsin . It seeks to employ the beneficiary permanently in the United States as a science instructional coordinator 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, electronically certified by the United States Department of Labor (DOL). The director denied the petition, finding that the petitioner had failed to establish the continuing ability to pay the proffered wage from the priority date.
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 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.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.
Thus, to be eligible for approval, the beneficiary must possess an advanced degree as defined above and must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on the ETA Form 9089 as certified by DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). Further, the petitioner must establish by a preponderance of the evidence that it has the ability to pay the proffered wage from the priority date until the beneficiary obtains legal permanent residence. See 8 C.F.R. § 204.5(g)(2).
The priority date is the . date when the ETA Form 9089 labor certification is accepted for processing by DOL. See 8 C.F.R. § 204.5(d). Here, the priority date is April 16, 2012. The prevailing wage or the proffered wage specified on the ETA Form 9089 is $77,272 per year. The petitioner specifies at part H of the ETA Form 9089 that the position offered in this case requires the beneficiary to have at least a Bachelor's degree in either teaching chemistry or biology plus five years of work experience in the job offered or in the alternate occupation of science teacher or head of the science department.
Upon review of the entire record, including evidence submitted on appeal, the AAO is persuaded that the petitioner has the continuing ability to pay the proffered wage of $77,272 per year from 2012 onwards, and that the beneficiary possesses the minimum education and experience required on the ETA Form 9089. 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 appeal is sustained. The petition is approved.