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SustainedEB-2 · Appeal

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Education · decided 2013-02-01 · TSC · FEB012013_04B5203

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

  • The appeal will be sustained. See in text
  • ORDER: The appeal is sustained, and the petition is approved. See in text

Main reasons given

  • Upon review of the entire record, including materials submitted on appeal, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all the education, training, and experience specified on the ETA Form 9089 as of November 29, 2011. 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 (2) AAO finding (1)Matter of X citation
    Decision header
    Date: FEB 0 · 1 2013 Office: TEXAS SERVICE CENTER · INRE: Petitioner: · Beneficiary: U:S.Departm.e"ilt of.Hcirneland 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 aEHALF 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. Ron Rosenberg

    Acting Chief, Administrative Appeals Office

    . www.uscis;gov

    DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now before the Administrative Appeals Office {AAO) on appeal. The appeal will be sustained. The petitioner is a prepaid card systems and processing company. It seeks to employ the beneficiary permanently in the United States as a lead internet developer. 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). Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. The director denied the.petition accordingly.

    The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). ·

    In pertinent part, section 203(b)(2) of the Immigrati6n and Nationality Act {the Act), 8 U.S.C. § 1153(b )(2), 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. An advanced degree is a United States academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "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 o(a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doc~orate or a foreign equivalent degree." ld.

    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 priority date of the p~tition is November 29, 2011, which is the date the labor certification was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d). The Immigrant

    Petition for Alien Worker (Form I-140) was filed on April18, 2012.

    Upon review of the entire record, including materials submitted on appeal, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all the education, training, and experience specified on the ETA Form 9089 as of November 29, 2011. Therefore, the beneficiary qualifies for preference visa classification under section 203(b )(2) of the Act. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has met that burden.

    ORDER: The appeal is sustained, and the petition is approved.