. 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 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, am
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov p. 2 i
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) . on ap.peal. The appeal will be sustained.
The petitioner is a manufacturer of automotive components. It seeks to employ the beneficiary permanently in the United States as a senior staff software engineer. As required by statute, the petition is accompanied by 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 beneficiary did not meet the job qualifications stated on the lab!Jr certification. The director denied the petition on September 3, 2011.
The AAO conducts appellate review on a de novo basis. See Soltane v. noj, 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 ·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.
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultunil or educational interests, or welfare of the United States:" The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered."
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 Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). The priority date of the petition is August 17, 2010, 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 I-140) was filed on May 15, 2011.
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 17, 2010. The beneficiary may be classified as a member of the professions holding an advanced degree or its equivalent because the job offered may be classified as such and his credentials match the terms of the labor certification. See 8 C.F.R. § 204.5(k)(2). Accordingly, the petition is approved, and the appeal is sustained.
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The burden of proof in these proceedings re~ts solely with the petitioner. Sect.ion 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. ·