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:
SELF-REPRESENTED
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO.
Thank you,
~«fo ~
Ron Rosenberg
Chief, Administrative Appeals Office www. uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner seeks to permanently employ the beneficiary in the United States as a Software Developer, Applications . The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
Procedural History
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). 1 The priority date of the petition is January 9, 2013.2 Part H of the labor certification states that the offered position has the following m1mmum requirements:
H.4. Education: Bachelor's degree in "Computer Science/Engineering or related field."
H.5. Training: None required.
H.6. Experience in the job offered : 60 months.
H. 7. Alternate field of study: "A closely related field."
H.8. Is there an alternate combination of education and experience that is acceptable? Yes. H.8-A. If Yes, specify the alternate level of education required: Master 's degree.
H.8.C. If applicable, indicate the number ofyears experience acceptable in question 8: 0. H.9. Foreign educational equivalent : Accepted.
H.l 0. Experience in an alternate occupation: None accepted.
H.14. Specific skills or other requirements: Extensive travel on assignments to vanous unanticipated client sites within the U.S. is required.
Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in Computer Science and Business Administration from in Madurai, India, completed in 2005. The record contains a copy of the beneficiary 's Bachelor of Commerce degree and transcripts from in Madurai, India, issued in 2005.
The record also contains the following evaluations of the beneficiary's educational credentials: 1 See section 212(a)(5)(D) of the Act, 8 U.S.C . § 1182(a)(5)(D) ; see also 8 C.F.R. § 204.5(a)(2). The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d) .
- By for -J dated December 19, 2013, concluding that the beneficiary "has attained the equivalent of [a] Bachelor of Computer Science [degree] from a Regionally Accredited College of University in the United States."
- By , Ph.D., for _ dated December 16, 2013, concluding that "[the beneficiary's] postsecondary studies are considered to have established a functional equivalency in our opinion to the degree of: Bachelor in Computer Science, representing 140 semester credit hours, from an institution of postsecondary education in the United States of America."
- By for the dated September 28, 2011, relying on the beneficiary's post-secondary Program in Computer Science and Systems Management from the and his Bachelor of Commerce degree from Mr. concludes that, based upon this education, "[the beneficiary] attained the equivalent of a Bachelor of Science Degree, with a dual major in Computer Science and Business Administration, from an accredited US college or university."
- By dated July 10, 2007, concluding that the beneficiary's three-year bachelor's degree "represents a single-source degree which is the equivalent of a bachelor's degree in the United States system."
The director's decision denying the petition states that the beneficiary does not have a single degree that is the foreign equivalent of a U.S. bachelor's degree, and therefore, he does not meet the education requirements of the ETA Form 9089 and the requirements for classification as an advanced degree professional.
On appeal, the petitioner states that the evaluations in the record demonstrate that the beneficiary possesses the U.S. equivalent of a Bachelor's degree in Computer Science.
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis. 3 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.4 A petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the director does not identify all of the grounds for denial in the initial decision. 5 3 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.P.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific inimigrant classification. This fact has not gone unnoticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v
. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In tum , DOL has the authority to make the two determinations listed in section 212(a)(14). 6 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject to review by INS absent fraud or willful misrepresentation , but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS ' authority.
Given the language of the Act, the totality of the legislative history , and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the 345 F.3d 683 (91h Cir. 2003).
two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law ," namely the section 212(a)(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated:
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b), 8 U.S.C. § 1154(b), as one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status.
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
(Emphasis added.) !d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. !d. § 212(a)(14) , 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. !d. § 204(b), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983).
The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. Eligibility for the Classification Sought
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(l).
The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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.
A "profession" is defined as "one of the occupations listed in section 101(a)(32) ofthe Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a p. 7 professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. When the beneficiary relies on a bachelor's degree (and five years of progressive experience) for qualification as an advanced degree professional, the degree must be a single U.S. bachelor's (or foreign equivalent) degree. The Joint Explanatory Statement of the Committee of Conference, published as part of the House of Representatives Conference Report on the Act, provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the alien must have a bachelor's degree with at least five years progressive experience in the professions." H.R. Conf. Rep. No. 955, t Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990). In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the legacy INS responded to criticism that the regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for the substitution of experience for education. After reviewing section 121 of the Immigration Act of 1990, Pub. L. 101-649 (1990) and the Joint Explanatory Statement of the Committee of Conference, the Service specifically noted that both the Act and the legislative history indicate that an alien must have at least a bachelor's degree: The Act states that, in order to qualify under the second classification, alien members of the professions must hold "advanced degrees or their equivalent." As the legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's degree with at least five years progressive experience in the professions." Because neither the Act nor its legislative history indicates that bachelor's or advanced degrees
have a single degree that is the "foreign equivalent degree" of a United States baccalaureate degree. See 8 C.P.R. § 204.5(k)(2) .
The beneficiary 's degree must also be from a college or university. The regulation at 8 C .P.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the beneficiary has a United States baccalaureate degree or a foreign equivalent degree." For classification as a member of the professions, the regulation at 8 C.P.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study." The AAO cannot conclude that the evidence required to demonstrate that a beneficiary is an advanced degree professional is any less than the evidence required to show that the beneficiary is a professional. To do so would undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for the more restrictive visa classification. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995)per APWUv. Potter, 343 F.3d 619,626 (2nd Cir. Sep 15, 2003) (the basic tenet of statutory construction , to give effect to all provisions, is equally applicable to regulatory construction). Moreover, the commentary accompanying the proposed advanced degree professional regulation specifically states that a "baccalaureate means a bachelor's degree received from a college or university, or an equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30706 (July 5, 1991).8
In addition, a three-year bachelor's degree will generally not be considered to be the "foreign equivalent " of a United States baccalaureate degree. See Matter of Shah, 17 I&N Dec. 244 (Reg'l. Comrn'r. 1977).9 See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) (for professional classification, USCIS regulations require the beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent degree); see also Sunshine Rehab Services, Inc. v. USCIS, 2010 WL 3325442 (E.D.Mich. August 20, 2010) (the beneficiary's three-year bachelor's degree was not the foreign equivalent of a U.S. bachelor's degree).
In the instant case, the petitioner relies on the beneficiary's three-year Bachelor of Commerce degree India as being equivalent to a U.S. bachelor's degree.
As noted above, the record contains evaluations ofthe beneficiary's educational credentials pre ared hv for Ph.D., for for the ; and Professor 10
The evaluation by Ms. refers to the beneficiary's Bachelor of Commerce degree from and states that he "has attained the equivalent of [a] Bachelor of Computer Science [degree] from a Regionally Accredited College of University in the United States." However, a review of the beneficiary's transcripts from demonstrates that the beneficiary did not take any computer courses. It is unclear how Ms. reaches the conclusion that the beneficiary has obtained a Bachelor's degree in Computer Science. Additionally, it is unclear how Ms. calculated the beneficiary's coursework to be equivalent to a U.S. bachelor's degree.
The evaluation by Dr. states that "[the beneficiary's] postsecondary studies are considered to have established a functional equivalency in our opinion to the degree of: Bachelor in Computer Science, representing 140 semester credit hours, from an institution of postsecondary education in the United States of America."
This evaluation Dr. also states the following on page six:
... It is our case that the measurement of 1,800 clock hours constitutes the minimum requirement to earn a bachelor's degree in the United States.
The evaluation states the following on page three:
... Evidence indicates that in the overwhelming majority of cases, the number of contact hours in an Indian 3 yr bachelor's degree exceeds 1800. This is supported further by references below in which it is shown that collegiate instruction in India is markedly more p. 10 that it likely contains the same. Our decision is therefore to adopt the figure of 1800 as representing a sensible minimum of contact hours absent evidence to the contrary.
This evaluation appears to conclude that the majority of three-year Indian degrees exceed 1800 contact hours and therefore are the equivalent of a bachelor's degree from an accredited U.S. university. Dr. goes on at length about Carnegie Units and Indian degrees in general in his evaluation, concluding that the beneficiary's three-year degree is equivalent to a U.S. baccalaureate but makes no attempt to assign credits for individual courses.
The Carnegie Unit was adopted by the Carnegie Foundation for the Advancement of Teaching in the early 1900s as a measure of the amount of classroom time that a high school student studied a subject.ll For example, 120 hours of classroom time was determined to be equal to one "unit" of high school credit, and 14 "units" were deemed to constitute the minimum amount of classroom time equivalent to four years of high school.12 This unit system was adopted at a time when high schools lacked uniformity in the courses they taught and the number of hours students spent in class. The Carnegie Unit does not apply to higher education. 13 Additionally, the evaluation by Dr. _ indicates that the beneficiary 's post-secondary education is equivalent to a U.S. Bachelor of Computer Science degree, but he does not state specifically how the beneficiary's Bachelor of Commerce relates in any way to the field of Computer Science. The evaluation by Mr. for the relies on the beneficiary's post-secondary program in Computer Science and Systems Management from the and his Bachelor of Commerce degree from
He concludes that based upon this education "[the beneficiary] attained the equivalent of a Bachelor of Science Degree, with a dual major in Computer Science and Business Administration, from an accredited US college or universitv." The record does not contain any evidence of the beneficiary's post-secondary program from
The evaluation by Professor dated July 10, 2007, concludes that the beneficiary's three-year bachelor's degree "represents a single-source degree which is the equivalent of a bachelor's degree in the United States system," but the evaluator feels all Indian degrees represent such an equivalency.
The AAO has reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 ll The Carnegie Foundation for the Advancement of Teaching was founded in 1905 as an independent policy and research center whose motivation is "improving teaching and learning." See http://www.carnegiefoundation.org/about-us/about-carnegie (accessed May 8, 2014).
higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries around the world." See http://www.aacrao.org/About-AACRAO.aspx. Its mission "is to serve and advance higher education by providing leadership in academic and enrollment services." !d. EDGE is "a web-based resource for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 14
According to EDGE, the beneficiary's three-year Bachelor of Commerce degree is comparable to three years of university study in the United States. Therefore, based on the conclusions of EDGE, and due to the deficiencies in the evaluations discussed above, the evidence in the record on appeal is not sufficient to establish that the beneficiary possesses the foreign equivalent of a U.S. bachelor's degree.Degree not shown to be a U.S. advanced degree equivalent
Although the record includes no evidence of the beneficiary's post-secondary program in Computer Science and Systems Management from the even if the record did contain such evidence, EDGE states that a post-secondary diploma, for which the entrance requirement is completion of secondary education, is comparable to one year of university study in the United States. EDGE does not suggest that a post-secondary diploma, if combined with a three-year degree, may be deemed a foreign equivalent degree to a U.S. baccalaureate. http://edge.aacrao.org/country/credential/post secondary-diploma?cid=single (accessed May 5, 2014).
After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty.Five years of progressive experience not documented Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.
The Minimum Requirements of the Offered Position
The petitioner must also establish that the beneficiary satisfied all of the educational, training, experience and any other requirements of the offered position by the priority date. 8 C.F.R. § 103.2(b)(l), (12). See Matter ofWing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak , 14 I&N Dec. 45, 49 (Reg. Comm. 1971 ).
In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, US CIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra Red Commissary of Massachusetts , Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, USCIS must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate about the beneficiary's qualifications. Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to "examine the certified job offer exactly as it is completed by the prospective employer. " Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor certification must involve "reading and applying the plain language of the [labor certification]." Id. at 834 (emphasis added). USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification. Even though the labor certification may be prepared with the beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006).
In the instant case, the labor certification states that he offered position requires a Bachelor's degree in "Compute ·r Science /Engineering or related field."
For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses a bachelor's degree as required by the terms of the labor certification.
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must also be denied for this reason.
Ability to Pay the Proffered Wage
Beyond the decision of the director, 15 the petitioner has not provided evidence of its ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2).2012. The record contains the petitioner's 2012 tax retum, but this precedes the January 9, 2013 priority date.
In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid the beneficiary the full proffered wage each year, users will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the wage paid, if any, and the proffered wage. 16 lfthe petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, users may also consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg 'l Comm ' r 1967).
In any further filings, the petitioner must provide evidence of its ability to pay the proffered wage covering the period of time from the priority date onward.
Conclusion
In summary, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the terms of the labor certification and the requested preference classification. Therefore, the beneficiary does not qualify for classification as a member of the professions holding an advanced degree under section 203(b)(2) of the Act. The director's decision denying the petition is affirmed.
Although not a basis for this decision, the petitioner must also establish its ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). The priority date of the instant petition is January 9, 2013, but the record does not contain any evidence of the petitioner's ability to pay the proffered wage in 15 An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d I 025, 1043 (E. D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).
2013. Therefore, in any additional filings, the petitioner must demonstrate its ability to pay the proffered wage to the beneficiary from January 2013 onward.
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings , it is the petitioner' s burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOti ende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. ORDER: The appeal is dismissed.