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DismissedEB-2 · Motion to reopen & reconsider

Occupation not stated

Computing, AI & data · decided 2013-03-25 · NSC · MAR252013_04B5203

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
    The Director's denial rested on this
    The director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification or as required by the advanced degree professional classification. p. 2

The decision in brief

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Summary sentence

The director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification or as required by the advanced degree professional classification. See in text

What the AAO decided

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)Matter of X citation

    I

    MAR 2 5 2013

    Date:

    IN RE.: Petitioner:

    Bencfil::iai-y: ·

    Office: NEBRASKA SERVICE CENTER

    U.S. Department of Homeland Security

    U.S. Cilizcnship and lmmigr:llion Servi,·cs

    Adminis1ra1ivc Appeals Office (Ai\0)

    20 Massachuseus Ave .. N.W., MS 20'l0

    Washingltln , DC 20S29-20<JO

    U.S. Citizenship and Immigration

    ServiCes

    FILE:

    PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advan{;ell 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:

    Enclosell please find the ·decision of the Administrative Appeals Office in your case. All of the documents related to this matler 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 mJust be made to that office. If you .believe the AAO inappropriately appli~d 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 file any ·motion directly with the AAO. Please he 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 seeks to reconsider or reopen.

    Thank you,

    Ron Rosenberg

    Acting Chief, Administrative Appeals Office

    ·www.uscis.gov

    DISCUSS'ION: · The employment-based immigrant visa petitiOn was denied ·by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

    The petitioner is an IT consulting company. It seeks to employ the beneficiary permanently in the United States as a lead 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 or as required by the advanced degree professional classification. The director denied the petition accordingly.

    The AAO issued a request for evidence (RFE) on December 20, 2012 concerning the actual minimum educational requirements of the offered position.• The AAO explained that it consulted a database that did not equate the beneficiary's credentials to a U.S. baccalaureate degree.

    The AAO also requ~sted 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 2011 and 2012. The petitioner was also requested to submit evidencepertaining to simultaneously pending immigrant and nonimmigrant petitions.

    This office allowed the petitioner 60 days in which to respond to the RFE. In the RFE, the AAO specifically alerted the petitioner that failure to respond to the RFE could result in dismissal of the appeal. The faifure 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 60 days have passed and the petitioner has failed to respond with proof that the beneficiary possessed the r~quirededucation 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)(l3).

    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 not met that burden.

    ORDER: The appeal is dismissed~

    I The AAO conducts appellate review on a de novo basis~ The AAO's de 'llOVO authority is well recognized by the federal courts; See Soltane v. DOJ, 381 F.3d 143, 145 .(3d Cir. 2004).