Date of Decision: November 3, 2015
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Facilities Engineering – Electrical
Petitioner Information
Profession: Facilities Engineer-Electrical
Field: Electrical Engineering
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Employment Certification: The Beneficiary provided a certified ETA Form 9089 indicating a requirement of a Bachelor’s degree in Electrical Engineering and five years of experience.
- Priority Date and Wage Offer: The priority date of September 12, 2013, and the proffered annual wage of $117,104 were established.
Criteria Not Met:
- Ability to Pay: The Petitioner failed to demonstrate the ability to pay the proffered wage continuously from the priority date onward.
- Beneficiary Qualifications: Inconsistencies in employment history and lack of detailed job duties in employment certificates.
Key Points from the Decision
Proposed Endeavor:
The Petitioner aimed to employ the Beneficiary as a Facilities Engineer-Electrical to manage and develop electrical systems for their linen supply business.
Substantial Merit and National Importance:
The Petitioner failed to demonstrate that the employment of the Beneficiary as a Facilities Engineer-Electrical holds substantial merit or national importance. The review noted the necessity of detailed and verifiable documentation to support claims of national interest, which was lacking in this case.
Supporting Evidence:
- Financial Documents: Included Forms 1120S for 2012 and 2013, a Form 941 for Q4 2014, and unaudited financial statements, none of which conclusively proved the ability to pay.
- Employment Evidence: Submitted earning statements for a portion of 2014 and employment certificates that did not consistently match the Beneficiary’s claimed experience.
Inconsistencies in Proposed Endeavor:
The review highlighted inconsistencies in the number of employees reported and the Beneficiary’s job titles and employment dates, which cast doubt on the Petitioner’s ability to support the proffered position.
Supporting Documentation
Letters of Intent:
Not specified in the review.
Business Plan:
Not specified in the review.
Advisory Letter:
Not specified in the review.
Any other supporting documentation:
The provided financial documents and employment certificates were insufficient to meet the regulatory requirements.
Conclusion
Final Determination: The appeal was dismissed due to the Petitioner’s failure to establish the ability to pay the proffered wage and the Beneficiary’s qualifying experience as required by the labor certification. The discrepancies in the employment records further undermined the credibility of the evidence presented.
Reasoning:
The decision was based on the inability to provide sufficient and consistent financial proof of the ability to pay and the failure to adequately document the Beneficiary’s required employment experience.
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