sustained
EB-2
sustained EB-2 Case: Neurophysiology
Decision Summary
The director initially denied the petition because it was determined that the beneficiary did not meet the minimum level of education specified on the labor certification. Upon de novo review, the AAO found that the petitioner had established the beneficiary did possess all the necessary education, training, and experience as of the priority date. Consequently, the appeal was sustained and the petition was approved.
Criteria Discussed
Advanced Degree Labor Certification Requirements
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identifyingdatadeletedto preventclearlyunwarranted invasionofpersonalprivacy PUBLICCOPY U.S.Departmentor HomelandSecurity U.s. CitizenshipandImmigrationServices AdministrativeAppealsOffice (AAO) 20 MassachuseusAve, N.W., Ms 2090 Washington,DC 20529-2090 8 U.S.Citizenship and Immigration Services Date: AUG 2 0 2012 Office: NEBRASKA SERVICECENTER FILE: IN RE: Petitioner: Beneficiary: PETITION: Immigrant Petition for Alien Worker as a Member of the ProfessionsHolding an Advanced Degreeor anAlienof ExceptionalAbility Pursuantto Section203(b)(2)of theImmigrationand NationalityAct,8 U.S.C.§ 1153(b)(2) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosedpleasefind the decision of the Administrative Appeals Office in your case. All of the documents relatedtothismatterhavebeenreturnedtotheofficethatoriginallydecidedyourcase.Pleasebeadvisedthat anyfurtherinquiry thatyou mighthaveconcerningyourcasemustbemadeto thatoffice. If you believe the AAO inappropriatelyapplied the law in reachingits decision,or you haveadditional informationthat you wish to haveconsidered,you mayfile a motion to reconsideror a motion to reopenm accordancewith the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirementsfor filing sucha motion can be found at 8 C.F.R. §103.5. Do not file any motion directly with the AAO. Pleasebeawarethat8 C.F.R.§ 103.5(a)(1)(i)requiresany motionto befiled within 30 daysof the decisionthat the motion seeksto reconsideror reopen. Thankyou, PerryRhew Chief, Administrative AppealsOffice www.uscis.gov Page2 DISCUSSION: The employment-basedimmigrant visa petition was denied by the Director, NebraskaServiceCenter,andis nowbeforetheAdministrativeAppealsOffice(AAO) onappeal.The appealwill besustained. Thepetitioneris a medicalcenter.It seeksto employthebeneficiarypermanentlyin theUnitedStates as a researchassociate(neurophysiology)pursuantto section203(b)(2)of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As requiredby statute,a labor certification accompaniedthepetition. Thedirectordeterminedthatthebeneficiarydid not satisfytheminimum levelof educationstatedon thelaborcertification.Thedirectordeniedthepetitionaccordingly. TheAAO conductsappellatereviewon adenovobasis.SeeSoltanev.DOJ, 381F.3d143,145(3d Cir. 2004). In pertinentpart, section203(b)(2)of the Immigrationand NationalityAct (the Act), 8 U.S.C.§ 1153(b)(2),providesimmigrant classificationto membersof the professionsholding advanced degreesor their equivalentandwhoseservicesaresoughtby anemployerin the UnitedStates.An advanceddegreeis a UnitedStatesacademicor professionaldegreeor a foreignequivalentdegree abovethe baccalaureatelevel. 8 C.F.R. § 204.5(k)(2). The regulationfurther states:"A United Statesbaccalaureatedegreeor a foreign equivalentdegreefollowed by at least five yearsof progressiveexperiencein the specialtyshallbe consideredthe equivalentof a master'sdegree.If a doctoral degreeis customarilyrequiredby the specialty,the alien must have a United States doctorateor a foreignequivalentdegree."Id. To beeligiblefor approval,abeneficiarymusthaveall theeducation,training,andexperiencespecified on the laborcertificationasof thepetition's priority date. SeeMatter of Wing's TeaHouse, 16 I&N 158(Act. Reg.Comm.1977).Thepriority dateof thepetitionisJuly30,2008,which is thedatethe labor certification was acceptedfor processingby the DOL See 8 C.F.R. § 204.5(d). The ImmigrantPetitionfor Alien Worker(FormI-140)wasfiled on May 18,2009. Uponreviewof theentirerecord,includingevidencesubmittedonappealandin responseto a Request for Evidenceissuedby theAAO, theAAO concludesthatthepetitionerhasestablishedthatit is more likely thannotthatthebeneficiaryhadall theeducation,training,andexperiencespecifiedonthelabor certificationasof July30,2008.Therefore,thebeneficiaryqualifiesfor preferencevisaclassification undersection203(b)(2)of theAct. Theburdenof proof in theseproceedingsrestssolelywith thepetitioner. Section291 of the Act, 8 U.S.C.§ 1361. Thepetitionerhasmetthat burden. ORDER: Theappealissustained,andthepetitionis approved.
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