Date of Decision: December 2, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Database Administration
Petitioner Information
Profession: Database Administrator
Field: Information Technology
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Labor Certification: The Petitioner successfully obtained labor certification, confirming there are insufficient U.S. workers available for the position.
Educational Requirements: The labor certification states that the offered position requires a U.S. master’s degree or foreign equivalent in computer science or mechanical engineering.
Criteria Not Met:
Experience with Employer: The Beneficiary’s experience with the Petitioner as a programmer analyst was deemed substantially comparable to the offered position of database administrator.
Additional Experience: The record did not contain sufficient evidence of the Beneficiary’s prior employment experience outside the Petitioner.
Key Points from the Decision
Proposed Endeavor:
The Petitioner seeks to employ the Beneficiary as a database administrator, responsible for coordinating changes to computer databases, testing and implementing database management systems, and planning and implementing security measures to safeguard data.
Substantial Merit and National Importance:
The decision document did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary focus was on the Beneficiary’s qualifications and the comparability of previous job duties.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, and letters documenting the Beneficiary’s employment with the Petitioner.
Further Submission on Appeal: Provided additional arguments and documents, including detailed descriptions of the Beneficiary’s job duties and an educational credentials evaluation.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was the use of the Beneficiary’s experience with the Petitioner to qualify for the offered position. The Beneficiary’s experience as a programmer analyst with the Petitioner was found to be substantially comparable to the offered position, making it ineligible as qualifying experience under DOL regulations.
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:
Employment Verification Letters: Documented the Beneficiary’s job duties and duration of employment with the Petitioner but did not provide evidence of prior experience.
Educational Credentials Evaluation: Confirmed the Beneficiary’s educational qualifications but did not address the experience requirement.
Conclusion
Final Determination: The decision of the Director is withdrawn, and the case is remanded for further consideration.
Reasoning:
The Petitioner established that the labor certification supports the requested classification of advanced degree professional. However, the record did not provide sufficient evidence that the Beneficiary possessed the required experience by the priority date, particularly because the experience gained with the Petitioner was deemed substantially comparable to the offered position. The Director is instructed to request additional evidence of the Beneficiary’s qualifications and allow the Petitioner reasonable time to respond. The case is remanded for further review and a new decision based on the complete record.
