Date of Decision: October 1, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology Services
Petitioner Information
Profession: Computer Programmer
Field: Information Technology Services
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Timeliness of Motion:
The petitioner successfully demonstrated that the motion to reopen was timely filed within the regulatory period.
Criteria Not Met:
Ability to Pay Proffered Wage:
The petitioner did not establish its ability to pay the combined proffered wages of this and its other petitions that were pending or approved as of the petition’s priority date or filed shortly thereafter. The petitioner must demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary obtains lawful permanent residence.
Required Experience:
The petitioner did not provide sufficient evidence to establish that the beneficiary met the minimum experience requirements for the offered position.
Key Points from the Decision
Proposed Endeavor:
The petitioner seeks to employ the beneficiary as a computer programmer, responsible for developing and managing software projects and consulting on IT solutions.
Substantial Merit and National Importance:
The petitioner’s work in IT consulting has potential merit and national importance. However, the petitioner must demonstrate the ability to pay the proffered wage as required by the labor certification process and ensure the beneficiary meets the job requirements.
Supporting Evidence:
The petitioner submitted the beneficiary’s pay stubs, IRS Forms W-2 for 2017 and 2018, and federal income tax returns for 2017 and 2018. However, the petitioner did not provide specific evidence of its ability to pay the proffered wages of all its I-140 beneficiaries or sufficient documentation of the beneficiary’s qualifying experience.
Inconsistencies in Proposed Endeavor:
The petitioner failed to provide a complete list of all I-140 beneficiaries and the corresponding proffered wages. The evidence provided did not sufficiently demonstrate the petitioner’s financial capacity to meet its wage obligations or the beneficiary’s qualifying experience.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
Not applicable.
Advisory Letters:
Not applicable.
Any other supporting documentation:
The petitioner submitted bank statements and tax returns, but these did not establish the ability to pay the proffered wage consistently. Additionally, the petitioner submitted a letter from the beneficiary’s previous employer, but it did not specify the duration of the beneficiary’s qualifying experience in detail.
Conclusion
Final Determination:
The decision was remanded for further consideration. The petitioner must provide additional evidence to demonstrate its ability to pay the combined proffered wages of all its petitions and verify the beneficiary’s qualifying experience.
Reasoning:
The evidence provided did not adequately demonstrate the petitioner’s ability to pay the proffered wage or the beneficiary’s qualifications. The petitioner must address the discrepancies regarding its financial capacity and the beneficiary’s experience to meet the requirements for the EB-2 classification. Consequently, the petition was remanded for further review.
