EB-2 NIW USCIS Appeal Review – Director of Education Department – AUG122019_01B5203

Date of Decision: August 12, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Education Management

Petitioner Information

Profession: Director of Education Department
Field: Education Management
Nationality: Not specified

Summary of Decision

Initial Decision: Denied
Appeal Outcome: Remanded

Evidentiary Criteria Analysis

Criteria Met:

Qualifying Experience: The Beneficiary’s qualifications and experience were established as per the initial approval of the petition.

Intention to Employ: The initial approval indicated the Petitioner’s intention to employ the Beneficiary in the offered position.

Criteria Not Met:

Ability to Pay Proffered Wage: The Petitioner did not provide sufficient evidence of its ability to pay the proffered wage for the year 2013.

Intent to Employ in Offered Position: The Director questioned the Petitioner’s intent to employ the Beneficiary in the offered position based on site visit findings and the Beneficiary’s volunteer status.

Key Points from the Decision

Proposed Endeavor:
The Petitioner, a church, intends to employ the Beneficiary as the director of its education department. This role involves managing educational programs, coordinating activities, and overseeing the department’s operations.

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 issues were procedural compliance and the Petitioner’s ability to pay the proffered wage.

Supporting Evidence:

Initial Submission: Included the Form I-140 petition, labor certification, and supporting documents such as a federal tax return for 2012.

Further Submission on Appeal: Provided additional evidence of the Petitioner’s activities and arguments addressing the Director’s findings.

Inconsistencies in Proposed Endeavor:
The primary inconsistency was the lack of evidence demonstrating the Petitioner’s ability to pay the proffered wage for the year 2013. Additionally, the Director questioned the Beneficiary’s employment status based on a site visit, which revealed that the Beneficiary was volunteering and the church did not have weekday activities.

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 Tax Return (2012): Showed excess revenue sufficient to pay the proffered wage.

Profit-and-Loss Statement (2013): Lacked independent auditor review, thus not meeting regulatory requirements.

Conclusion

Final Determination: The Director’s decision was withdrawn, and the case was remanded for further review.
Reasoning:
The Petitioner did not initially meet the burden of proof required to establish eligibility for the benefit sought due to insufficient evidence of the ability to pay the proffered wage for 2013. Additionally, the Director’s notice of intent to revoke (NOIR) included allegations not previously addressed, preventing the Petitioner from responding adequately. The new NOIR should outline the deficiency in evidence and provide the Petitioner with a reasonable period to respond with additional documentation, including audited financial statements for 2013 and other relevant evidence. The case is remanded for a comprehensive review and issuance of a new decision based on the complete record.

Download the Full Petition Review Here

Victor Chibuike
Victor Chibuike

A major in Programming,Cyber security and Content Writing

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