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,
Ron Rosenberg
Acting Chief, Administrative Appeals Office
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center (Director). It is now on appeal before the Acting Chief, Administrative Appeals Office (AAO). The appeal will be sustained, and the petition approved.
The petitioner is a tool manufacturer. It seeks to permanently employ the beneficiary in the United States as a senior basis 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, the petition is accompanied by an Application for Permanent Employment Certification, ETA Form 9089, which was certified by the U.S. Department of Labor (DOL).
On September 7, 2012, the Director denied the petition on the ground that the petitioner failed to establish that the beneficiary satisfied the minimum level of education required on the labor certification.
The AAO conducts appellate review on a de novo basis. See So/tane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
Section 203(b )(2) of the Act provides for the granting of preference classification to members of the professions holding advanced degrees whose services are sought by employers in the United States. To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as ofthe petition's priority date. See Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). The petitioner must also establish its continuing ability to pay the proffered wage of the subject position from the priority date up to the present. See 8 C.F .R. § 204.5(g)(2). The priority date of the instant petition is February 3, 2012, which is the date the underlying labor certification was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d). 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 the beneficiary more likely than not had all the education, training, and experience specified on the ETA Form 9089 as of the priority date - February 3, 2012. The AAO also determines that the petitioner has established its continuing ability to pay the proffered wage from the priority date up to the present. Accordingly, the petition is approved under section 203(b)(2) or the Act, 8 U.S.C. § 1153(b)(2), as an advanced degree professional.
The burden of proof in these proceedings rests solely with the petitioner. See Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has met that burden.
ORDER: The appeal is sustained. The petition is approved.