Date of Decision: September 21, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Business Analytics
Petitioner Information
Profession: Business Analytics Director
Field: Business Analytics
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Submission of payroll records showing wages paid to the beneficiary
The Petitioner submitted copies of payroll records from December 2014 to June 2015 indicating payments to the Beneficiary.
Demonstration of the job opportunity
The Petitioner provided evidence of the job opportunity as required under 20 CFR 656.10(c)(8).
Criteria Not Met:
Ability to pay the proffered wage
The Petitioner did not submit the required annual reports, federal tax returns, or audited financial statements. Despite claiming that the regulation does not mandate these specific documents, the plain language of 8 C.F.R. § 204.5(g)(2) requires their submission.
Consistency and authenticity of payroll records
The payroll records initially identified a different employer name than the Petitioner’s legal name, and this inconsistency was not adequately explained.
Key Points from the Decision
Proposed Endeavor:
The Beneficiary was proposed to be employed as a Business Analytics Director, managing fitness studios’ business analytics operations.
Substantial Merit and National Importance:
While the Petitioner claimed the position had substantial merit and national importance, the decision focused primarily on the financial documentation and authenticity of the payroll records.
Key quotes or references:
“The regulation states that evidence of ability to pay ‘shall be’ in the form of annual reports, federal tax returns, or audited financial statements.” (8 C.F.R. § 204.5(g)(2))
Supporting Evidence:
Payroll records from December 2014 to June 2015 were provided, initially showing an employer name inconsistent with the Petitioner’s legal name.
No additional financial documentation such as annual reports, federal tax returns, or audited financial statements was provided as required.
Inconsistencies in Proposed Endeavor:
The payroll records submitted had discrepancies in the name of the employer, casting doubt on the Petitioner’s claim of paying the Beneficiary’s wages.
Supporting Documentation
Letters of Intent:
[Not Applicable]
Business Plan:
[Not Applicable]
Advisory Letter:
[Not Applicable]
Any Other Supporting Documentation:
Payroll records indicating payments to the Beneficiary but showing inconsistent employer names.
Conclusion
The appeal was denied. The Petitioner did not adequately demonstrate the ability to pay the proffered wage and provided inconsistent payroll records that undermined the credibility of the evidence presented.
Download the Full Petition Review Here
In Re: SEP212017_02B5203
Document Name: SEP212017_02B5203.pdf
