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 (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.
Ron Rosenberg
Chief, Administrative Appeals Office
-www. uscis.gov
NON-PRECEDENT DECISION
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center (Director). It is now on appeal before the Chief, Administrative Appeals Office (AAO). The appeal will be sustained, and the petition approved.
The petitioner is a telecommunications company. It seeks to permanently employ the beneficiary in the United States as an "Engineer - Services RF" 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 ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL).
The Director denied the petition on November 20, 2013, on the ground that the record failed to establish that the beneficiary had two years of qualifying experience, in conformance with the labor certification.
The petitioner filed a timely appeal, accompanied by additional evidence of the beneficiary's work experience. The AAO conducts appellate review on a de novo basis. See Soltane 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 of the 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 to the beneficiary 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 October 4, 2012, which is the date the underlying labor certification was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d). The Immigrant Petition for Alien Worker (Form 1-140) was filed on March 14, 2013.
Upon review of the entire record, 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. 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) of the Act, 8 U.S. C. § 1153(b )(2), for classification of the beneficiary 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 (2012); Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). That burden has been met in this action.
ORDER: The appeal is sustained. The petition is approved.