Date of Decision: April 18, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology
Petitioner Information
Profession: Conversion Developer
Field: Information Technology
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Petitioner’s History: The Petitioner provided evidence of its incorporation and operational history since 1997.
Employment Record: The Petitioner documented the Beneficiary’s employment history, including a seven-year tenure with a previous employer and subsequent employment with the Petitioner.
Criteria Not Met:
Ability to Pay: The Petitioner did not demonstrate its ability to pay the proffered wage of $125,258 per year from the priority date onward, considering the combined wage obligations of multiple I-140 beneficiaries.
Beneficiary’s Qualifications: The Petitioner failed to establish that the Beneficiary possessed the requisite five years of progressive post-baccalaureate experience in software development, testing, and implementation by the priority date.
Key Points from the Decision
Proposed Endeavor:
The Petitioner intended to employ the Beneficiary as a conversion developer, requiring a U.S. bachelor’s degree or foreign equivalent in information technology or a related field, plus five years of progressive experience in software development, testing, and implementation.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor, focusing instead on the ability to pay and the Beneficiary’s qualifications.
Supporting Evidence:
Initial Submission: Included the Petitioner’s federal income tax return for 2017, documentation of the Beneficiary’s employment, and an independent evaluation of the Beneficiary’s foreign educational credentials.
Further Review: Highlighted the need for the Petitioner’s 2018 financial documentation and additional evidence of the Beneficiary’s qualifying experience.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was the lack of sufficient, verifiable evidence to demonstrate the Beneficiary’s possession of the required experience and the Petitioner’s financial capability to meet wage obligations.
Supporting Documentation
Letters of Intent:
Not applicable in this case.
Business Plan:
Not applicable in this case.
Advisory Letter:
Not applicable in this case.
Any other supporting documentation:
Federal Income Tax Return (2017): Provided initial financial information but was insufficient to demonstrate ability to pay for 2018.
Employment Verification Letters: Documented the Beneficiary’s previous employment but lacked detailed descriptions of job duties and post-baccalaureate experience.
Conclusion
Final Determination: The decision of the Director was withdrawn, and the case was remanded for further review.
Reasoning:
The Petitioner did not meet the burden of proof required to establish its ability to pay the proffered wage for the Beneficiary and all other I-140 beneficiaries from the priority date onward. Additionally, the Petitioner failed to establish the Beneficiary’s qualifications for the offered position. The Director will ask the Petitioner to submit the required financial documentation for 2018 and additional evidence of the Beneficiary’s experience, considering the totality of circumstances and allowing a reasonable period for response. The case will be reviewed in its entirety upon receipt of the additional evidence.
