sustained EB-2 Case: Biotechnology

(b)(6)
DATJMAY 0 8 2013 OFFICE: TEXAS SERVICE CENTER 
IN RE: 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. § l153(b)(2) 
ON BEHALF 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. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center (director), denied the employment-based 
immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be sustained and the petition will be approved. 
The petitioner is a biotechnology company. It seeks to permanently employ the beneficiary in the 
United States as a molecular biologist. 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 
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 priority 
date ofthe petition is October 23, 2010.Z 
At issue on appeal is whether the petitioner has the ability to pay the proffered wage as of the 
priority date and continuing until the beneficiary obtains lawful permanent residence. 
The record shows that the appeal is properly filed and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the 
decision. Further elaboration of the procedural history will be made only as necessary. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 3 
The petitioner must establish that its job offer to the beneficiary is a realistic one. The petitioner's 
ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
The regulation 8 C.F.R. § 204.5(g)(2) states: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
1 Section 203(b)(2) ofthe Act, 8 U.S.C. § 1153(1))(2), provides immigrant classification to members of 
the professions holding advanced degrees whose services are sought by an employer in the United 
States. 
2 
The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. 
§ 204.5(d). 
3 The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, 
Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(l). 
The record in the instant case provides no reason to preclude consideration of any of the documents 
newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
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to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
The proffered wage stated on the labor certification is $65,200 per year. According to the tax returns 
in the record, the petitioner was established in 2003 and is structured as a 
C corporation. 
Following a review of the entire record of proceeding, including additional evidence submitted on 
appeal, it is concluded that the petitioner has established by a preponderance of the evidence that it 
has possessed the continuing ability to pay the beneficiary the proffered wage from the priority date. 
Therefore, the director's decision denying the petition is withdrawn and the appeal is sustained. 
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.