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DismissedEB-2 · Motion to reopen & reconsider

Occupation not stated

Computing, AI & data · decided 2013-03-07 · TSC · MAR072013_02B5203

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.

Summary sentence

The director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. See in text

What the AAO decided

Main reasons given

  • Section 291 of the Act; 8 U.S.C. § 136L The petitioner has not met that burden. See in text
Read the full decision (2 pages)

Objections found (0)

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    Full decision

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

    Highlighted: Outcome (3) AAO finding (1)Matter of X citation
    Decision header
    Date: MAR 0 7 2013 Office: TEXAS SERVICE 'CENTER · IN RE: Petitioner: . BenCriciary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services FILE: · PETITION: Immigrant Petition for Alien Worker as a Mc::mber 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 ·case. All of the docurm:nts related to this maHer 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 oHice.

    If you believe the AAO inappropriately applied the. law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fcc of $630_ The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion s~eks to reconsider or reopen.

    Thank you, moo

    Ron Rosenberg

    Acting Chief, Administrative Appeals Office www.uscis.gov

    DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Servi~e Center, and is now before the Administrative Appeals Office· (AAO.) on appeal. The appeal will be dismissed. .

    The petitioner is an IT software and development company. It seeks to employ the beneficiary permanently in the United States as a senior programmer analyst 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, a labor certification accompanied the petition. The director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. The director denied the petition accordingly.

    The AAO issued a Request for Evidence and Notice of Intent to Dismiss (NOlO) on October 2, 2012 concerning the actual minimum educational requirements of the offered position. 1 The AAO explained that it consulted a database that.did not equate the beneficiary's credentials to a U.S. bachelor's degree. The

    AAO solicited additional evidence of the beneficiary's credentials:

    The AAO also requested evidence to establish that the petitioner has the ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition and continuing up to. the,present. Specifically, the petitioner was instructed to submit tax -returns or audited financial statements for the petitioner for 2011 and Forms W -2 or 1099 (if any) for the beneficiary for 20 II. This ·Office allowed the petitioner 30 days in which to respond to the NOlO. In the NOlO, the AAO specifically alerted the. petitioner that failure to respond to the NOlO could result in dismissal of the appeal. 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). More than 30 days have passed and the petitioner has failed to respond with proof that the beneficiary possessed the required education for the offered position and that it has the ability to pay the beneficiary the proffered wage. Thus, the appeal will be dismissed as abandoned. See also 8 C.F.R. § 103.2(b)(13).

    J

    The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act; 8 U.S.C. § 136L The petitioner has not met that burden.

    ORDER: The appeal is dismissed.