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SustainedEB-2 · Appeal

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Education · decided 2013-03-01 · TSC · MAR012013_01B5203

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.

What the AAO decided

  • The appeal will be sustained. See in text
  • ORDER: The appeal is sustained, and the petition is approved. See in text

Main reasons given

  • Upon review of the entire record, including evidence submitted on appeal and in response to a Request for Evidence issued by the AAO, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all the education, training, and experience specified on the ETA Form 9089 as of August 14, 2009. See in text
Read the full decision (2 pages)

Objections found (1)

Automated tags. Each shows the sentence that triggered it.

  • Upon reviewing the petition, the director determined that the evidence did not establish that the beneficiary possessed at least a bachelor's degree and five years of progressive experience, the alternate combination of education and experience permitted on the ETA ·Form 9089. See in text (p. 2)

Full decision

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

Highlighted: Outcome (2) AAO finding (1) Tagged objection (1)Matter of X citation
Decision header
Date: . MAR 0 1 2013 · Office: TEXAS SERVICE CENTER · IN RE: Petitioner: · Beneficiary: U.S. De~artment of Homeland Security U.S. Citizenship and Immigration Scrvil"cs Administmtivc Appeals Office (AAO) 20 Massach~sctts Ave .. N.W .. MS 20'10 Washington, ·De 20.'i21J<"!OlJO U.S. Citizenship and Immigration Services · FILE: · PETITION : Immigrant Petition for Alien Worker as a Member of the Professions 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 ca~e. All of the documents related to this maller have been returned to the office that originally decided your case. Please be advised that any further inquiry thai you might have concerning your case must be made to that office. Thank you,

Ron Rosenberg

.Acting Chief, Administrative Appeals Office www.uscis.gov

DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now before .the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petitioner is a pharmaceutical services company. It seeks to employ the beneficiary permanently in the United States as a staff scientist. 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). Upon reviewing the petition, the director determined that the evidence did not establish that the beneficiary possessed at least a bachelor's degree and five years of progressive experience, the alternate combination of education and experience permitted on the ETA ·Form 9089.Five years of progressive experience not documented The director denied the petition accordingly. · The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). .

In pertinent part, section 203{b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), 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 ba.ccalaureate 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.

To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as of the petition's priority date. See Maller l~l Wing's Tea House, 16 I&N 158 {Act. Reg. Comm. 1977). The priority date of the petition is August 14, 2009, which is the date the labor certification ·was accepted for processing by the DOL See 8 C.F.R. § 204.5(d). The ·Immigrant Petition for Alien Worker (Form 1-140) was filed on April 27, 2010.

Upon review of the entire record, including evidence submitted on appeal and in response to a Request for Evidence issued by the AAO, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all the education, training, and experience specified on the ETA Form 9089 as of August 14, 2009. The beneficiary appears to have earned a foreign equivalent degree to a U.S. bachelor's degree in chemistry and to have at least five years of progressive work experience. Therefore, the beneficiary qualifies for preference visa classification under section 203(b)(2) of the Act.·

. 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.