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SustainedEB-2 · Appeal

Occupation not stated

Other / unclear · decided 2014-11-10 · NSC · NOV102014_01B5203

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

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

What the AAO decided

Main reasons given

  • Upon review of the entire record, including evidence submitted on appeal and in response to a Request for Evidence (RFE), the petitioner has established that it is more likely than not that it has the ability to pay the proffered wage as of the priority date. See in text
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 (6) AAO finding (1)Matter of X citation
    Decision header
    DATE: NOV 1 0 2014 OFFICE: NEBRASKA SERVICE CENTER · INRE: Petitioner: · Beneficiary : U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington , DC 20529-2090 U.S. Citizenship and Immigration Services FILE: · PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced

    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. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non­ precedent decisions.

    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,

    ~-{ /.v ~~Rosenberg

    Chief, Administrative Appeals Office www.uscis.gov

    NON-PRECEDENT DECISION

    DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (the director), and is now before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn and the appeal will be sustained. The petition will be approved. The petitioner is a research, development of speech recognition technology/products firm. It seeks to employ the beneficiary permanently in the United States as senior software engineer I pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).1 As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), certified by the U.S. Department of Labor (DOL). The director's decision concluded that the petitioner had failed to establish its ability to pay the proffered wage.

    We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 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, Application for Permanent Employment Certification, was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d). The ETA Form 9089 was filed on May 23,2013.

    Upon review of the entire record, including evidence submitted on appeal and in response to a Request for Evidence (RFE), the petitioner has established that it is more likely than not that it has the ability to pay the proffered wage as of the priority date. Thus, the petitioner has overcome the ground for denial of the petition in the director's decision. The director's decision will be withdrawn. Accordingly, the petition is approved under section 203(b)(2) of the Act.

    As always in visa petition proceedings, the burden of proof rests entirely with the petitioner. See section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has met that burden.

    ORDER: The director's decision dated February 21, 2014 is withdrawn. The appeal is sustained. The petition is approved.

    Section 203(b)(2) of the Act 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.