Date of Decision: October 11, 2018
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: IT Development Services
Petitioner Information
Profession: Business Analyst
Field: IT Development Services
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
None. The Petitioner failed to demonstrate that the labor certification supported the requested classification of advanced degree professional or that the Petitioner had the ability to pay the proffered wage.
Criteria Not Met:
Labor Certification Requirements: The Petitioner, an IT consulting and software development company, sought to employ the Beneficiary as a business analyst under the advanced degree professional category. However, the labor certification allowed the Beneficiary to qualify with less than an advanced degree, specifically a bachelor’s degree and five years of progressive experience. As a result, the labor certification did not meet the requirements for the advanced degree professional classification.
Ability to Pay: The Petitioner did not provide sufficient evidence to establish its ability to pay the proffered wage of $103,750 per year. Although the Beneficiary was employed by the Petitioner and received wages, the amounts paid in 2016 and 2017 did not meet or exceed the proffered wage. Furthermore, the Petitioner failed to demonstrate its ability to pay the proffered wages of all beneficiaries of its other I-140 petitions.
Key Points from the Decision
Proposed Endeavor:
The Petitioner intended to employ the Beneficiary as a business analyst within the IT development services sector. The petition aimed to secure lawful permanent resident status for the Beneficiary based on his qualifications. However, the Petitioner did not provide sufficient evidence to demonstrate that the labor certification supported the requested advanced degree classification or that the Petitioner could meet the wage requirements.
Substantial Merit and National Importance:
The decision did not directly address the merit or national importance of the Beneficiary’s work due to the focus on the labor certification and wage payment issues.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The Petitioner did not establish eligibility for the EB-2 classification, so the national interest waiver request was not considered.
Supporting Evidence:
The Petitioner provided a labor certification, tax returns, and wage statements. However, these were insufficient to meet the specific requirements for the advanced degree classification and to demonstrate the ability to pay the proffered wage.
Inconsistencies in Proposed Endeavor:
The primary issue was the Petitioner’s failure to provide a labor certification that supported the requested advanced degree classification and to demonstrate the ability to pay the proffered wage from the petition’s priority date onward.
Supporting Documentation
Letters of Intent:
No specific letters of intent were summarized in the decision.
Business Plan:
No specific business plan was summarized in the decision.
Advisory Letter:
No specific advisory letters were provided or summarized in the decision.
Any Other Supporting Documentation:
The Petitioner did not provide additional documentation that would have addressed the Director’s concerns regarding the labor certification and the ability to pay the proffered wage.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The Petitioner failed to demonstrate that the labor certification supported the requested advanced degree classification and that the Petitioner had the ability to pay the proffered wage. Consequently, the appeal was dismissed, and the previous decision to deny the petition was upheld.
