sustained EB-2 Case: Pharmacy

(b)(6)
DATE:JUN 1 0 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. § 1153(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. 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
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 pharmacy. It seeks to employ the beneficiary permanently in the United 
States as a pharmacist-supervisor. As required by statute, the petition is accompanied by an 
ETA Form 9089, Application for Permanent Employment Certification, approved by the United 
States Department of Labor (DOL). The director determined that the petitioner had not 
established that it had the continuing ability to pay the beneficiary the proffered wage beginning 
on the priority date of the visa petition. The director denied the petition accordingly. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 
(3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted 
upon appeal.1 
In pertinent part, section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U .S.C. § 
1153(b )(2), provides immigrant classification to members of the professions holding advanced 
degrees or their equivalent and whose services are sought by an employer in the United States. 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.P.R. § 204.5(k)(2). The regulation further states: "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." /d. 
Section 203(b )(2) of the Act also includes individuals "who because of their exceptional ability 
in the sciences, arts or business, will substantially benefit prospectively the national economy, 
cultural or educational interests, or welfare of the United States." The regulation at 8 C.P.R. § 
204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that 
ordinarily encountered." 
The regulation at 8 C.P.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition 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 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 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form 
I-290B, which are incorporated into the regulations by the regulation at 8 C.P.R. § 103.2(a)(1). 
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). 
(b)(6)
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form of copies of annual reports, federal tax returns, or audited financial 
statements. 
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 was accepted for processing by any office 
within the employment system of the DOL. See 8 C.F.R. § 204.5(d). The petitioner must also 
demonstrate that, on the priority date, the beneficiary had the qualifications stated on its ETA Form 
9089 as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 
16 I&N Dec. 158 (Act. Reg. Cornm. 1977). The priority date in this matter is November 21,2011. 
The evidence submitted on appeal establishes that it is more likely than not that the petitioner 
had the continuing ability to pay the proffered wage beginning on the priority date. Thus, 
assessing the totality of circumstances in this individual case, it is concluded that the petitioner 
has demonstrated its financial strength and viability and has the ability to pay the proffered wage. 
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. The petition is approved.