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SustainedEB-2 · Appeal

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Education · decided 2014-11-07 · NSC · NOV072014_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.

Summary sentence

Upon review of the entire record, including evidence submitted on appeal and in response to a notice of derogatory information and notice of intent to dismiss (NDVNOID) we issued, we conclude 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 December 13, 2012. See in text

What the AAO decided

Main reasons given

  • Upon review of the entire record, including evidence submitted on appeal and in response to a notice of derogatory information and notice of intent to dismiss (NDVNOID) we issued, we conclude 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 December 13, 2012. See in text
Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    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
    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 · DATE : NOV 0 7 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: · INRE : PETITIONER: BENEFICIARY: · 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:

    SELF -REPRESENTED

    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,

    ~d.ri'erg

    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 healthcare IT solutions firm. It seeks to employ the beneficiary permanently in the United States as a product manager, clinical solutions. The petitioner requests classification of the beneficiary as an advanced degree professional 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 ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). The director determined that the beneficiary did not meet the minimum requirements of the labor certification. The director denied the petition on October 4, 2013.

    We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 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 ofthe petition is December 13, 2012, 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 1-140) was filed on May 17, 2013.

    Upon review of the entire record, including evidence submitted on appeal and in response to a notice of derogatory information and notice of intent to dismiss (NDVNOID) we issued, we conclude 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 December 13, 2012. Accordingly, the petition is approved under section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2).

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

    ORDER: The director's decision dated October 4, 2013 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, whose services are sought by an employer in the United States.