Degree or an Alien of Exceptional Ability Pur8uant to Section 203(b )(2) of the Immigration · and Nationality Act, 8 U.S.c § ll53(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) i_n ycnir c~se. This is l:l non precedent decision. The AAO · does not annou~ce new constructions of law not establiSh ageQCY policy throu~h ·non-precedent decisions.
Thankyou, · ·
&ukfh ~ l~,;r~~ ,
. Ron Rosenberg
Chief, Administrative · .· ppeals Office / p. 2 l>IS((USSION: 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 sustained and the petition will be approved. '
The petitioner describes itself as ail information technology I information service consulting company. It seeks to permanently employ the beneficiary in the United States as a ''senior quality assurance software analyst." The petitioner r~quests cla.ssification of the beneficia.ry as an adva_nc;ed degree professional pursuant to section 203(l> )(2) of the Immigration and N ationa:lity Act (the Act), 8 U .S.C. § 1153(b )(2).1 .
The petition is accompanied by an ETA Fonn 9089, Application for Permanent Employment Certification (labor certification), certified by the U.S. Department Of Labor (DOL). The priority date of the petition, which is the date the DOL accepted the labor certification for processing, is July 28, 2011, See 8 C.P.R. § 204.5( d).
The director's decision denying the petition concludes that the beneficiary did not establish its ability to pay the proffered wage.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir, 2004). The AAO considers all pertinent evidence in the record, including new evidence prop~rly submitted upon appeal.2
The petitioner must establish that itS job offer to the benefiCiary is a realistic One. The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. i977). The regulation at 8 C.P.R. § 204.5(g)(2) sta.tes, in part:
Ability of prospective employer to pay wage. Any petition filed by or for art 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 must demonstrate this ability at the time the priority date is established and contiiming until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of c;opies 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 office within 1 Section 203(b )(2) of the Act provides immigrant classification· to members of the professions holding advanced degrees, whose services are sought by an employer in the United States.
the employment system of the DOL. See 8 C.F.R. § 204.5( d). The priority date of the instant petition is July 28, 2011.
Upon review of the entire record, including additional evidence submitted oil appeal alld in response to , a request for evidence issued by the AAO, it is concluded that the petitioner has established, by a prepond~raQ.ce of the evid~nce, that it posse~ed the continuing ability to pay the proffered wage beginning on the priority date of the petition. Accordingly, the director's decision is withdrawn, the appeal is sustained, and the petition is approved under section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2).
In visa petition proceedings, it is the petitioner's burden to est~blish eligibility for the immigration. benefit sought. Sectioll 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has been met.
ORDER: The ~ppeal is sustained, a11d tb.e petitiov is approved.