sustained EB-2 Case: Business

(b)(6)
DATE: DEC 0 6 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department ofHomeland Se(:urity 
U.S. Citizenship and Immigration Services 
Aciministrative Appeals Office (AAO) 
20 Massachusetts Ave, N.W., MS 2090 
Washington, D~ 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § l1$3(b)(2) 
ON B~HALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the d~cisioii of the Adnlinistrative Appeals Office in your case. This is a non­
precedent decision. The AAO does not announce Qew COIJ.stnrctions of law nor e~tablish 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 concemiQg your case must be made 
to that office. · 
Thank you, 
h.#'~~ ~o~enberg 
Chief, Administrative Appeals Office 
1V\V\V.uscis~gov 
(b)(6)
NON-PRECEDENT fJEClSION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas 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· director's decision will be withdrawn and the appeal will be .sustained, The petition will be 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 an Italian ice cream fn!,nchise business. It seeks to employ the beneficiary 
permanently in tf!e United States <!S a.n intem(lliomtl mMket rese¥ch analyst pursuant to section 
203(b)(2) of the lininigration 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 (labor certification), certified by the U.S. Department of Labor 
(DOL). The director's decisioQ. concluded th;:tt the petitioner did not establish that it had the 
-ability to pay the proffered wage. 
The AAO conducts appellate review on a de. novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004). 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date, which is the date the ETA Form 9089, Application for Permanent Employment 
Certificat1on, was accepted . for processing by any office within the employment system of the 
POL. S~e 8 C.F.R. § 204.5(d). The petitioner IIJJ!St alsod~m.onstrate that, on the priority date, the 
beneficiary had the qualifications stated on its ETA Form 9089, Application for Permanent 
Employment Certification, as certified by the DOL and submitted with. the instant petition. Matter 
ofWing's TeaHouse, 16 I&N Dec. 158 (Act. Re.g~ Comm.l977). 
Upon review of the enthe record, includi.Qg evidence sub~nitted on appeal and in resp<)nse to a 
Request fot Evidence issued by the AAO, the petitioner has established -tha.t it is more likely than 
not that it has the continuing ability to pay the proffered wage as of the priority date. The record 
also reflects that it is more likely than not that the beneficiary posSesses the minimum education 
and experience required for the proffered position as stated on the labor certification. thus, the 
. petitioner has overcome the ground for denial of the petition in t_he director's decision. 
Accordingly, the director's decision will be withdrawn. Accordingly; the petition is approved 
under section 203(b )(2) of the Act. · 
As always in visa petition proceedings, the burden of proof rests enthely with the petitioner. See 
section 2.91 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Th,e petitioner }las m.et that burden, . 
ORDER: The director's decision dated December 11, 2012 is withdrawn. The appeal is 
s\istained. The petition is approved. · ·