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. Thank you,
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Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The director denied the petitioner's motion to reopen and reconsider. The matter is now before the Administrative Appeals Office (AAO) on appeaL The appeal will be sustained. The petition will be approved.
The petitioner is a real estate investment and development firm. It seeks to employ the beneficiary permanently in the United States as a graphic designer with classification as an advanced degree professional 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, approved by the United States Department of Labor (DOL). The director determined that the petitioner failed to demonstrate that it had the continuing ability to pay the proffered wage. The director denied the petition, accordingly. The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
In pertinent part, 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.
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its ETA Form 9089, Application for Permanent Employment Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm'r 1977). The petitioner must also establish that it has had the continuing ability to pay the proffered wage from the priority date onward. The priority date is the date the ETA Form 9089, Application for Permanent Employment Certification, ~as accepted for processing by any office within the employment system ofthe DOL. See 8 C.F.R. § 204.5(d).
Here, the priority date as established by the ETA Form 9089 is December 30, 2005. Upon review and reconsideration of the entire record, the AAO concludes that the petitioner has established that it has had the ability to pay the proffered wage. Accordingly, the petition is approved under section 203(b)(2) ofthe Act, 8 U.S.C. § 1153(b)(2) in the advanced degree professional classification. 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, and the petition is approved.