dismissed EB-2 Case: Accounting

(b)(6)
DATijAN 0 3 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 (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. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center (director), denied the immigrant visa petition 
and the Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is again 
before the AAO on a motion to reopen and a motion to reconsider. The motions to reopen and 
reconsider will be granted. The previous decision of the AAO will be affirmed. The petition will 
remain denied. 
The petitioner describes itself as a charitable organization. It seeks to permanently employ the 
beneficiary in the United States as a controller (comptroller). 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). 
The director determined that the record did not establish that the beneficiary held a Master's degree 
from an accredited university or college in the United States, as required for classification as an 
advanced degree professional under section 203(b )(2) of the Act, 8 U .S.C. § 1153(b )(2). He further 
concluded that the petitioner had not demonstrated its ability to pay the beneficiary the proffered 
wage. The director denied the petition accordingly. 
On appeal, the AAO also found that the beneficiary's Master's degree from an unaccredited 
university did not satisfy the requirements of the labor certification or establish her eligibility for 
classification as an advanced degree professional under section 203(b )(2) of the Act. It further 
determined that the evidence of record failed to demonstrate the petitioner's ability to pay the 
beneficiary the proffered wage pursuant to the regulation at 8 C.P.R. § 204.5(g)(2). The AAO based 
its July 31, 2013 dismissal of the appeal on both these findings, with each identified as an 
independent and alternate basis for the denial of the visa petition. 
The petitioner now submits a motion to reopen and a motion to reconsider, contending that in 
requiring the beneficiary ' s degree to have been awarded by an accredited U.S. college or university , 
the AAO has impermissibly expanded the Act. The petitioner also asserts that the AAO has erred in 
finding that the record does not establish its ability to pay the proffered wage and submits additional 
documentation in support of this claim. 
Based on its review of the record, the AAO grants the petitioner's motions and will reconsider its 
prior decision in this matter, limiting its reconsideration solely to the issues raised on motion. 
Classification as Advanced Degree Professional 
Section 203(b )(2) of the Act, 8 U.S. C. § 1153(b )(2), provides immigrant classification to members of 
the professions holding advanced degrees. See also 8 C.P.R.§ 204.5(k)(l). 
A "profession" is defined as "one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation." The occupations listed at section 10l(a)(32) of 
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the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers m elementary or 
secondary schools, colleges, academies, or seminaries." 
The regulation at 8 C.P.R. § 204.5(k)(2) defines the term "advanced degree" as: 
[A]ny United States academic .or professional degree or a foreign equivalent degree 
above that of baccalaureate. 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 of a master's degree. If a doctoral degree 
is customarily required by the specialty, the alien must have a United States doctorate 
or a foreign equivalent degree 
• Accreditation Requirement 
On motion, counsel for the petitioner asserts that neither the Act nor the above regulation requires 
that an academic degree have been awarded by an accredited university or college and, therefore, 
that the AAO erred as a matter of law in refusing to accept the beneficiary's Master's degree. She 
notes that a fundamental canon in statutory interpretation is "the plain meaning rule," requiring 
statutes to be interpreted using the ordinary meaning of their language. In support of her assertions, 
counsel cites Caminetti v. United States, 242 U.S. 4 70 (1917) as standing for the proposition that if a 
statute's language is plain and clear, "the duty of interpretation does not arise, and the rules which 
are to aid doubtful meanings need no discussion." Counsel further contends that the use of the 
phrase "any United States academic or professional degree" in the regulation at 8 C.F .R. 
§ 204.5(k)(2) "can only be interpreted as referring to any and every degree obtained in the United 
States without restriction and with or without accreditation." She asserts that if the Congress had 
intended to require that the advanced degree defined at 8 C.P.R. § 204.5(k)(2) be from an accredited 
school, it should have included that language in the regulations and that absent the amendment of the 
law or the issuance of a precedent decision, the AAO has abused its discretion as "construction of 
the law is a matter left for Congress." Counsel's reasoning is not persuasive. 
The U.S. Constitution empowers the Executive Branch to create the regulations that govern the 
implementation of statute and the U.S. Congress has delegated the authority to promulgate 
regulations implementing immigration law to the Department of Homeland Security (DHS).1 The 
regulatory definition of advanced degree, which United States Citizenship and Immigration Services 
(USCIS) has interpreted as a degree issued by an accredited U.S. university or college, was 
published by the legacy Immigration and Naturalization Service (INS, now USCIS) on November 
1 
The Administrative Procedure Act (APA), Pub.L. 79-404, 60 Stat. 237, enacted June 11, 1946 
governs the way in which Executive Branch agencies propose and establish regulations. 
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29, 1991, following the enactment of the Immigration Act of 1990 on November 29, 1990. 
Although counsel questions USCIS' reading of 8 C.P.R. § 204.5(k)(2), an agency's interpretation of 
its regulations has been found to be controlling unless '"plainly erroneous or inconsistent with the 
regulation."' SeeAuer v. Robbins, 519 U.S. 452,461-463 (1997)(CitingRobertson v. Methow Valley 
Citizens Council , 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989)(quoting Bowles 
v. Seminole Rock & Sand Co., 325 U.S. 410,414, 65 S.Ct. 1215, 1217 89 L.Ed. 1700 (1945)). 
The AAO acknowledges that 8 C.P.R. § 204.5(k)(2) does not specifically state that a degree must 
come from an accredited college or university to qualify as an "advanced degree. " The 
accreditation requirement is, instead, implicit in the language of the regulation. 
The Act is a federal statute with nationwide application. The regulations implementing the Act -
including 8 C.P.R.§ 204.5(k)(2) defining "advanced degree" for the purposes of section 203(b)(2) of 
the Act - also have nationwide application. As defined in 8 C.P.R. § 204.5(k)(2), an "advanced 
degree" includes "any United States academic or professional degree . . . above that of 
baccalaureate" (or a foreign equivalent degree), "[a] United States baccalaureate degree" (or a 
foreign equivalent degree) and five years of specialized experience (considered equivalent to a 
master's degree), and "a United States doctorate" (or a foreign equivalent degree). (Emphases 
added.) Similarly, "professional" is defined in 8 C.P.R. § 204.5(1)(2) as "a qualified alien who 
holds 
at least a United States baccalaureate degree" (or a foreign equivalent degree). (Emphasis added.) 
The repeated usage of the modifier "United States" to describe the different levels of (non-foreign) 
degrees makes clear the intention of the rulemakers that the regulations apply to degrees issued by 
U.S. educational institutions that are recognized and honored on a nationwide basis. 
As stated by the U.S. Department of Education (DEd) on its website: 
The U.S. Department of Education does not accredit educational institutions and/or 
programs. However, the Secretary of Education is required by law to publish a list of 
nationally recognized accrediting agencies that the Secretary determines to be reliable 
authorities as to the quality of education or training provided by the institutions of 
higher education and the higher education programs they accredit. An agency 
seeking national recognition ... must meet the Secretary's procedures and criteria for 
the recognition of accrediting agencies , as published in the Federal Register . 
The Secretary ... makes the final determination regarding recognition. 
The United States has no . . . centralized authority exercising . . . control over 
postsecondary educational institutions in this country .... [I]n general, institutions of 
higher education are permitted to operate with considerable independence and 
autonomy. As a consequence, American educational institutions can vary widely in 
the character and quality of their programs . 
. . . [T]he practice of accreditation arose in the United States as a means of conducting 
nongovernmental, peer evaluation of educational institutions and programs. Private 
educational associations of regional or national scope have adopted criteria reflecting 
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the qualities of a sound educational program and have developed procedures for 
evaluating institutions or programs to determine whether or not they are operating at 
basic levels of quality . 
. . . Accreditation of an institution or program by a recognized accrediting agency 
provides a reasonable assurance of quality and acceptance by employers of diplomas 
and degrees. 
www.ed.gov/print /admins /finaid /accred/accreditation.html (accessed December 9, 2013). 
The DEd and the Council for Higher Education Accreditation (CHEA) are the two entities 
responsible for the recognition of accrediting bodies in the United States. CHEA, which was 
established in 1996, is an association of 3,000 degree-granting colleges and universities. 
"Recognition by CHEA affirms that standards and processes of accrediting organizations are 
consistent with quality, improvement , and accountability expectations that CHEA has established." 
See www .chea.org/pdf /Recognition Policy-June 28 2010-FINAL.pdf. Accordingly , to be 
recognized nationally a U.S. university or college must be accredited by an accrediting organization 
recognized by DOE and CHEA. 
In the present case, the record reflects that the beneficiary holds a Master of Science in International 
Business from DEd and CHEA 
recognize the · 
as the accrediting association with jurisdiction over !- A 
review of the website , which lists all the accredited academic institutions within its 
jurisdiction, does not find See http://www.< Qigj_. As the beneficiary ' s Master 's degree 
was not awarded by an accredited institution, it cannot be deemed to have nationwide recognition 
and, therefore, does not qualify as an advanced degree within the meaning of 8 C.F.R. 204.5(k)(2). 
This conclusion is in line with federal case law. In Philip Tang v. District Director of the U.S. 
Immigration and Naturalization Service (Tang v. INS), 298 F. Supp. 413 (D.C. Cal. 1969), the 
district court agreed with the legacy Immigration and Naturalization Service (INS, now USCIS) that 
a bachelor of science in electronic engineering from Pacific States University in California, an 
institution that was not accredited by the W ASC, did not entitle the alien to a third preference visa 
because his degree was not equivalent to a bachelor ' s degree from an accredited college or 
university in the United States. See 298 F.Supp . at 417, 419. The district court's decision was 
affirmed without further discussion by the U.S. Court of Appeals for the Ninth Circuit in a per 
curiam ruling. See Tang v. INS, 433 F.2d 1311 (9
1
h Cir. 1970). 
2 See http://www.chea .org/Directories /regional.asp. 
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• Approval by Bureau for Private Postsecondary Education 
On motion, counsel contends that has been "accredited" by the California Bureau for Private 
Postsecondary Education (BPPE) and, resubmits a printout from the BPPE website and a November 
13, 2012 statement from , both of which identify as a BPPE-approved institution. 
However, being approved to operate by the State of California is not the same as being accredited by 
a recognized accrediting agency, which "signifies that an institution has attained a threshold level of 
academic quality." 
The State of California has acknowledged the qualitative difference between accredited and 
unaccredited educational institutions. The California Postsecondary Education Commission 
(CPEC), the state's planning and coordinating body for higher education from 1974 to 2011,3 
includes the following language regarding the "benefits associated with accreditation" on its website: 
Both the federal government and the states use accreditation as an indication of the 
qualit y of education offered by American schools and colleges. 
At the federal level, colleges and universities must be accredited by an agency 
recognized by the United States Secretary of Education in order for it or its students 
to receive federal funds. 
At the state level , California allows colleges and universities that are accredited by 
the Western Associ ation of Schools and Colleges (the recognized regional accrediting 
agency for California) to grant degrees without the review and approval of the Bureau 
for Private Postsecondary Education (BPPE). A list of approved institutions is 
available at the Califomia Bureau for Private Postsecondary Education (BPPE). 
In some states, it can be illegal to use a degree from an institution that is not 
accredited by a nationally recogniz ed accrediting agency, unless approved by the state 
licens ing agency. This helps prevent the possibility of fraud . ... 
www.cpec.ca.gov/CollegeGuicle/Accredit ation.asp (accessed December 9, 2013) . 
The qualitative differenc e between accredited and unaccredited educational institutions , 
acknowledged above by the CPEC, is also recognized by the State of California in its Education 
Code. Cal. Ed. Code section 94813 defines "accredited" as follows: 
"Accredited" means an institution is recognized or approved by an accrediting agency 
recognized by the United States Department of Education. 
3 The CPEC ceased operations on November 18, 2011, after its funding was eliminated. See 
http://www .cpec.ca.gov. 
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With respect to unaccredited institutions that are approved to operate in California, Cal. Ed. Code 
section 94817.5 provides the following basic definition: 
"Approved to operate" or "approved" means that an institution has received 
authorization pursuant to this chapter to offer to the public and to provide 
postsecondary educational programs. 
Cal. Ed. Code section 94887 sets the following guideline for the BPPE's grant of an approval to 
operate: 
An approval to operate shall be granted only after an applicant has presented 
sufficient evidence to the bureau (BPPE], and the bureau has independently verified 
the information provided by the applicant through site visits or other methods deemed 
appropriate by the bureau, that the applicant has the capacity to satisfy the minimum 
operating standards .... 
Accreditation provides assurance of a basic level of quality of the education provided by an 
institution as well as the nationwide acceptance of its degrees. BPPE approval represents a lower­
level endorsement, establishing only that an educational institution "has 
the capacity to satisfy the 
minimum operating standards." See Cal. Ed. Code section 94887. There is no guarantee that degrees 
awarded by a BPPE-approved school in California will be recognized and honored nationwide. 
Accordingly, the AAO does not find the BPPE's approval of Master of Science in 
International Business program to establish as an accredited university. 
• Approval of Form I-20 by Student and Exchange Visitor Program 4 
Counsel also contends that the beneficiary's degree from should be accepted as an advanced 
degree because the Department of Homeland Security (DHS) has approved the school for attendance 
by foreign students. She asserts that "it is clearly inequitable to initially acknowledge that the 
applicant is pursuing a United States master's degree and 
later [claim] that said degree is not such." 
Counsel further asserts that the definition of a Master's degree is uniform and may not be defined 
differently in nonimmigrant and immigrant visa categories. 
The AAO acknowledges that the Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) 
Student Status- For Academic and Language Students, previously filed by the beneficiary indicates 
4 The Student and Exchange Visitor Program (SEVP) is a part of the National Security Investigations 
Division of U.S. Immigration and Customs Enforcement (ICE) and acts as a bridge for government 
organizations that have an interest in information on nonimmigrants whose primary reason for 
coming to the United States is to study. On behalf of DHS, SEVP manages schools, nonimmigrant 
students in the F and M visa classifications and their dependents. 
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that she studied for a Master's degree at' However, as discussed on appeal, the approval of an 
institution for attendance by foreign students in F -1 nonimmigrant visa status5 is not related to the 
requirements for immigrant classification as an advanced degree professional. Although counsel's 
assertions are acknowledged, the AAO does not find them to be supported by the record, e.g., 
relevant precedent decisions. Without supporting documentation, the assertions of counsel are not 
sufficient to meet the burden of proof in these proceedings. The assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Accordingly , the record also fails to establish that the approval of the beneficiary 's Form 1-20 
provides a basis for finding her Master's degree to establish her qualifications for the offered 
position. 
After reviewing the evidence of record on motion, the AAO again concludes that the petitioner has 
failed to establish that the beneficiary possesses at least a U.S. academic or professional degree (or a 
foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent 
degree) followed by at least five years of progressive experience in the specialty. Therefore, the record 
does not establish that the beneficiary is qualified for classification as an advanced degree professional 
under section 203(b )(2) of the Act. 
Minimum Requirements of the Offered Position 
The petitioner must establish that the beneficiary satisfies all of the educational, training, experience 
and any other requirements of the offered position as of the priority date. 8 C.F.R. § 103.2(b)(l), 
(12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). 
In evaluating the job offer portion of the labor certification to determine the required qualifications 
for the position, USCIS may not ignore a term of the labor certification, nor may it impose additional 
requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra­
Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.Zd 1 (1st Cir. 1981). 
In the instant case, the labor certification states that the only requirement for the offered position is a 
Master's degree in Business Administration or a related field, or accounting. For the reasons explained 
above, the petitioner has failed to establish that the beneficiary possesses the required degree. 
Therefore, the petitioner has also failed to demonstrate that the beneficiary met the minimum 
requirements of the offered position, as set forth in the labor certification, by the priority date, which in 
the present case is July 12, 2012. 
5 See 8 C.F.R. § 214.3. 
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Ability to Pay the Proffered Wage 
Pursuant to the regulation at 8 C.F.R. § 204.5(g)(2), a petitioner must demonstrate a continuing 
ability to pay the beneficiary the proffered wage beginning on the priority date. See 8 C.F.R. 
§ 204.5(d). Here, as previously noted, the priority date of the ETA Form 9089 is July 12, 2012. The 
proffered wage, as stated on the ETA Form 9089, is $76,565.00 per year. 
As indicated on appeal, USCIS, in determining a petitioner's ability to pay, first examines whether the 
petitioner was employing the beneficiary as of the date on which the labor certification was accepted 
for processing by DOL. If the petitioner documents that it has employed the beneficiary at a salary 
equal to or greater than the proffered wage during the required period, that evidence is considered 
prima facie proof of the petitioner 's ability to pay pursuant to 8 C.F.R. § 204.5(g)(2). If the 
petitioner does not demonstrate that it employed and paid the beneficiary at an amount at least equal 
to the proffered wage during the required period, USCIS then examines the net income figure 
reflected on the petitioner 's federal income tax returns, without consideration of depreciation or 
other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco Especial 
v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. Filed Nov. 10, 
2011).6 If the petitioner 's net income during the required time period does not equal or exceed the 
proffered wage or if when added to any wages paid to the beneficiary, does not equal or exceed the 
proffered wage, USCIS reviews the petitioner's net current assets. 
In cases where neither an employer's net income nor its net current assets establish a consistent 
ability to pay the proffered wage during the required period, USCIS may also consider the overall 
magnitude of a petitioner's business activities. Matter of Sonegawa at 612. In assessing the totality 
of the petitioner's circumstances to determine ability to pay, US CIS may look at such factors as the 
number of years a petitioner has been in business, its record of growth, the number of individuals it 
employs, abnormal business expenditures or losses, its reputation within its industry, whether the 
beneficiary is replacing a former employee or an outsourced service, or any other evidence it deems 
relevant. 
On appeal, the AAO found the evidence of record did not establish the petitioner's ability to pay the 
beneficiary the proffered wage. In its decision, the AAO indicated that the petitioner had submitted 
no documentation, including Internal Revenue Service (IRS) Form W-2 Wage and Tax Statements 
(W-2s), to establish that it had paid the beneficiary at or above the proffered wage since the July 12, 
2012 priority date. Although the AAO acknowledged the petitioner's submission of a 2011 Form 
6 Reliance on federal income tax returns as a basis for determining a petitioner 's ability to pay the 
proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. 
Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. V. Feldman , 736 F.2d 
1305 (9th Cir. 1984)); see also Chi-Feng Chang. v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); KC.P. Food Co., Inc. v. Sava, 623 F. Supf. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (i Cir. 1983). 
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Page 10 NON-PRECEDENT DECISION 
990, Return of Organization Exempt from Income Tax, it found that the tax return did not support 
the petitioner's claim that it had $152,007.00 in net current assets. It further refused to consider the 
2012 balance sheet the petitioner submitted on appeal , which reflected $746 ,542.55 in net current 
assets, finding that it was not audited , as required by the regulation at 8 C.P.R. § 204.5(g)(2) and, 
also, that it provided only an interim computation of the petitioner's assets and liabilities. The 
AAO ' s decision further informed the petitioner that the 2012 bank statements it had submitted were 
insufficient proof of its ability to pay, as they reflected only the amount of money it had in its 
account on a given date, rather than a sustained ability to pay the proffered wage. 
The AAO's decision on appeal also discussed the petitioner's failure to establish that the totality of 
the petitioner ' s circumstances demonstrated its ability to pay the proffered wage. Unlike the 
petitioner in Sonegawa, the petitioner in the present case was found to have submitted no evidence 
relating to its financial and/or organizational history since its establishment. The AAO therefore 
concluded that there was no basis on which to find that the totality of the petitioner's circumstances 
demonstrated its continuing ability to pay the proffered wage. 
On motion , counsel for the petitioner asserts that the AAO has erred in disregarding the petitioner's 
Form 990 tax return, which, she contends, establishes that it has the net current assets to cover the 
proffered wage. She submits a copy of the petitioner's Form 990 for 2012, which she asserts 
demonstrates that the petitioner had net current assets of $272,839.00 in 2012. As noted in the 
appeal, the Form 990 does not contain the figures required to calculate net current assets. 7 These 
figures would be obtained from an audited balance sheet, which the petitioner has not submitted. 
Counsel also submits additional bank statements, covering the period October 1, 2012 through July 
31, 2013, contending that they are proof that J:he petitioner retains "more than sufficient cash 
balances" to pay the proffered wage. 
While the AAO acknowledges counsel's claims regarding the sufficiency of the preceding evidence 
in establishing the petitioner's ability to pay the proffered wage, these assertions were addressed by 
the AAO at the time of the appeal, the discussion of which is incorporated herein by reference. On 
motion, the petitioner has submitted none of the documentary evidence that the AAO, on appeal, 
indicated could establish its ability to pay. Instead, it supplements the record with a 2012 Form 990 
that reports net income of $46,472.00, which is $30,093.00 less than the proffered wage , and 
additional bank statements, which the AAO has previously indicated are insufficient to establish its 
ability to pay.8 Therefore, the AAO continues to find that the record does not demonstrate the 
petitioner's continuing ability to pay the beneficiary the proffered wage. 
7 Current assets are generally defined as items having (in most cases) a life of one year or less, such 
as cash, marketable securities, inventory and prepaid expenses. Barron 's Dictionary of Accounting 
Terms 117 (3rct ed. 2000). 
8 The AAO's most recent review of the bank statements submitted by the petitioner also finds that 
the account balances are identified as the petitioner's "Emergency Fund" and no evidence in the 
record demonstrates the circumstances under which the monies from such a fund could be used, 
including whether these resources could be used to pay the beneficiary 's wages . 
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Conclusion 
In summary, the petitioner has failed to establish that the beneficiary qualifies for the offered 
position or for classification as a member of the professions holding an advanced degree under 
section 203(b )(2) of the Act. The petitioner has also failed to demonstrate its ability to pay the 
beneficiary the proffered wage from the July 12, 2012 priority date onward, as required by the 
regulation at 8 C.P.R. § 204.5(g)(2). 
The motions are granted and the appeal is dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. In visa petition proceedings, it is 
the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. Accordingly, the AAO will affirm its prior decision. 
ORDER: The motions to reopen and reconsider are granted. The prior decision of the AAO is 
affirmed. The petition remains denied.