Date of Decision: December 4, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Product Marketing
Petitioner Information
Profession: Director, Product Marketing
Field: Manufacturing/Import/Export
Nationality: Not specified
Summary of Decision
Initial Decision: Approved
Revocation of Approval: The approval was revoked due to concerns regarding the Petitioner’s ability to pay the proffered wage and the validity of the employment relationship and job offer. Additionally, there were findings of fraud or willful misrepresentation of material facts.
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Labor Certification: The Petitioner successfully obtained labor certification, indicating that there are insufficient U.S. workers available for the position.
Job Requirements and Qualifications: The Beneficiary met the educational and experience requirements for the position of director, product marketing.
Criteria Not Met:
Ability to Pay Proffered Wage: The Petitioner did not provide sufficient evidence of its continuing ability to pay the proffered wage in accordance with the regulatory requirements.
Validity of Employment Relationship and Job Offer: The Director found that the Petitioner and Beneficiary failed to establish a valid employment relationship and that a bona fide job offer was available to U.S. workers.
Fraud or Willful Misrepresentation: The Director determined that the Petitioner and Beneficiary committed fraud or willfully misrepresented a material fact in the filing of the petition.
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as a director of product marketing. The role involves overseeing marketing strategies, product development, and international market expansion for the company’s products.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary focus was on the ability to pay the proffered wage and the validity of the job offer.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, and documents supporting the Beneficiary’s qualifications.
Further Submission on Appeal: Provided additional evidence and arguments to address the Director’s findings, including financial documents and statements clarifying the employment relationship.
Inconsistencies in Proposed Endeavor:
The primary inconsistencies were related to the financial ability to pay the proffered wage and the legitimacy of the job offer. The Petitioner did not provide sufficient evidence to address these concerns adequately.
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:
Financial Records: Included financial statements and tax returns but did not demonstrate the ability to pay the proffered wage consistently.
Employment Relationship Documentation: Provided statements and documents attempting to clarify the nature of the employment relationship and the job offer.
Conclusion
Final Determination: The decision of the Director was withdrawn, and the case was remanded for further proceedings.
Reasoning:
The Director did not determine whether the Beneficiary was eligible to participate in the revocation proceedings as an affected party under the portability provision of section 204(j) of the Act. The matter is remanded for the Director to make this determination, considering whether the Beneficiary had properly ported to a new job and whether the new job is in the same or similar occupational classification as the position offered in the petition. If the Beneficiary is found to be an affected party, the Director should issue a new Notice of Intent to Revoke (NOIR) to the Beneficiary and allow for a response before making a final decision.
