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. AJI 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. CffiD
Ron Rosenberg
Acting Chief, A,dministrative Appeals Office www.uscis.gov
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is riow before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn and the matter remanded for a new decision.
The petitioner is a consulting engineering company. It seeks to employ the beneficiary permanently in the United States as a senior mechanical engineer. 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 1that the petitioner failed to demonstrate that the beneficiary satisfied the minimum level of education stated on the labor certification and that the petitioner had not established that it .had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the petition accordingly.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 1.43, 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 profe~sional 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 docto,rate ora 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 of Wing's Tea House, 16 l&N 158 (Act. Reg. Comm. 1977). The priority date of the petition is June 29, 2011, 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 September 29, 2011.
Upon review of the entire record, including evidence submitted on appeal, the AAO concludes that the . petitioner has established that it is more likely than not that the beneficiary had the education specified on the ETA Form 9089 as of June 29, 2011. The beneficiary appears to have earned a foreign equivalent degree to a U.S. bachelor's degree in mechanical engineering and to have had at least five years of progressive work experience. · ·Five years of progressive experience not documented
However, the petition may not be approved at this time because. the record does not establish that the beneficiary has the special skills required in Part H.14 of the ETA Form 9089. i.e., knowledge of "Revit, Solid Works, and AutoCAD software."
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
. . . .
Ability of prospective employer to pay wage. Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner inust demonstrate this ability at the time the. priority date is established and ·continuing until the beneficiary obtains lawful permanent residence. Evidence of this ·ability shaH-be either in the form of copies of annual reports, federal tax returns,.or audited financial statements.
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the - priority date, which is the date the ETA Form 9089 was accepted for processing by any offic:e within .the employment system of the DOL. See 8 C.F.R. § 204.5( d).
Upon review of the· entire record, including the petitioner's 2011 federal tax return, the AAO concludes that the petitioner has established that it had the continuing ability to pay the beneficiary the proffered · wage beginning on the priohty date of the v.isa petition.
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 not that burden.
ORDER: The director's decision is withdrawn; however, the petition is currently unapprovable for the reasons discussed above, and therefore the AAO may not approve the petition at this time. Because the petition is not approvable, the petition is remanded to the director of for issuance of a new, detailed decision. ·