Date of Decision: January 23, 2015
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Architecture
Petitioner Information
Profession: Intermediate Architect
Field: Architecture
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Criterion 1: Purchase of office equipment and furniture, rights to use the name, telephone and fax numbers, internet domains, and “all goodwill of the predecessor.”
- Criterion 2: Submission of an Asset Purchase Agreement.
Criteria Not Met:
- Criterion 1: The petitioner did not demonstrate it had assumed all of the original employer’s rights, duties, and obligations.
- Criterion 2: The evidence in the record does not establish that the beneficiary possessed the required experience set forth on the labor certification by the priority date.
Key Points from the Decision
Proposed Endeavor:
The petitioner describes itself as a consulting engineering and architectural firm seeking to permanently employ the beneficiary as an intermediate architect. The petitioner requested classification of the beneficiary as an advanced degree professional.
Substantial Merit and National Importance:
The petitioner’s inability to establish a valid successor relationship for immigration purposes resulted in the dismissal of the appeal. The agreement submitted allows for the original company to continue operations, thus not fully transferring the business to the petitioner. The petitioner also failed to demonstrate its ability to pay the proffered wage from the priority date onward.
Supporting Evidence:
- Letters of Intent: Provided by the petitioner indicating the intention to continue employing the beneficiary.
- Advisory Letters: Included letters confirming the beneficiary’s employment with the original company.
- Business Plan: Not specifically mentioned, but implied through the provided documents.
Inconsistencies in Proposed Endeavor:
The petitioner’s claim that it assumed all of the original employer’s rights, duties, and obligations was not supported by the evidence provided. Additionally, the beneficiary’s claimed experience did not meet the job requirements as per the labor certification.
Supporting Documentation
Letters of Intent:
- The beneficiary was employed by the predecessor from October 31, 2007, to November 20, 2012.
Advisory Letter:
- Confirmation of the beneficiary’s employment dates and roles.
Conclusion
The appeal was dismissed. The petitioner did not establish a valid successor relationship or the ability to pay the proffered wage, nor did the beneficiary meet the required experience set forth on the labor certification by the priority date.
