Date of Decision: November 30, 2015
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Business Development
Petitioner Information
Profession: Business Development Director
Field: Motor Manufacturing
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
- Experience and Education: The beneficiary met the required education and experience as stipulated in the labor certification.
- Job Offer Realism: Demonstrated employment with the petitioner and provided wage statements.
Criteria Not Met:
- Ability to Pay the Proffered Wage: The petitioner failed to demonstrate the ability to pay the proffered wage from the priority date onward through acceptable financial documents such as federal tax returns, audited financial statements, or annual reports.
- Consistency of Employment Records: Inconsistencies were found in the beneficiary’s employment history and wage records.
Key Points from the Decision
Proposed Endeavor:
The petitioner proposed employing the beneficiary as a business development director to focus on market research, development, and service transitioning to manufacturing operations in Mexico and the United States.
Substantial Merit and National Importance:
The substantial merit and national importance of the proposed endeavor were not sufficiently demonstrated. The petitioner did not provide convincing evidence of the beneficiary’s unique qualifications or the specific national interest that would benefit from the endeavor.
Supporting Evidence:
- Wage and Tax Statements: Provided Forms W-2 for the years 2011, 2012, and 2013, which were inconsistent with the labor certification.
- Pay Stubs: Pay stubs for 2014 and early 2015, showing payments less than the proffered wage.
Inconsistencies in Proposed Endeavor:
- Employment Authorization: The beneficiary was not authorized to work for the petitioner during parts of the documented employment period.
- Conflicting Employment Records: Conflicting records regarding the beneficiary’s employment with other companies during the claimed period.
Supporting Documentation
Letters of Intent:
- Summary: Not specifically mentioned in the document.
Business Plan:
- Summary: Not specifically mentioned in the document.
Advisory Letter:
- Summary: Not specifically mentioned in the document.
Any Other Supporting Documentation:
- Bank Statements: Provided bank statements indicating cash flow from wire credits and internal transfers, but lacking a comprehensive audited statement of cash flows.
Conclusion
Final Determination: The appeal is dismissed due to the failure to demonstrate the ability to pay the proffered wage and inconsistencies in employment records.
Reasoning: The petitioner did not provide adequate financial documentation to establish the continuous ability to pay the proffered wage from the priority date. Additionally, employment records contained inconsistencies that were not resolved satisfactorily.
