Date of Decision: November 27, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Industrial Automation and Software Development
Petitioner Information
Profession: Industrial Automation and Software Developer
Field: Industrial Automation and Software Development
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Certification: The petitioner was recognized as meeting the criterion for having relevant certifications in his field.
Criteria Not Met:
- Advanced Degree: The petitioner did not sufficiently demonstrate that his educational background qualifies as an advanced degree equivalent to a U.S. bachelor’s degree. The documentation provided, including an expert opinion letter and educational evaluation, did not adequately explain how the petitioner’s vocational coursework and work experience equate to a U.S. bachelor’s degree.
- Experience: The petitioner failed to provide sufficient evidence of at least ten years of full-time experience in the occupation. The letters provided from former clients and employers did not specify full-time employment or describe the petitioner’s duties in detail.
- Salary: The petitioner did not demonstrate that his salary or other remuneration was indicative of exceptional ability. The provided paychecks and salary comparisons lacked evidence showing that his income was a result of his purported exceptional ability.
- Professional Membership: The petitioner’s membership in a professional association post-dated the petition filing and thus could not be considered. Eligibility must be established at the time of filing.
- Recognition for Achievements: The petitioner did not provide sufficient evidence of recognition for achievements and significant contributions to the industry or field. The letters from clients and employers did not reference any formal recognition or the impact of the petitioner’s work on the industry.
Key Points from the Decision
Proposed Endeavor:
The petitioner proposed to continue his work developing software for heating, ventilation, and air conditioning (HVAC) systems, as well as refrigeration equipment. He asserted that his work in industrial automation and software development is essential to improving the efficiency and performance of HVAC systems, which has broader implications for energy savings and environmental benefits.
Substantial Merit and National Importance:
The Director and the Administrative Appeals Office (AAO) concluded that while the petitioner’s work has substantial merit in the field of industrial automation, it does not meet the standard for national importance as required for the EB-2 NIW. The petitioner’s work, though valuable, was not shown to have a significant national impact beyond the scope of his specific projects or clients.
Well Positioned to Advance the Proposed Endeavor:
The petitioner’s qualifications and experience were recognized, but the lack of evidence regarding his full-time experience and the absence of recognition for significant contributions weakened his position to advance the proposed endeavor on a national scale.
On Balance, It Would Be Beneficial to Waive the Requirements of the Labor Certification Process:
This aspect was not reached in the analysis, as the petitioner did not satisfy the basic eligibility criteria for the EB-2 classification.
Supporting Evidence:
The petitioner submitted certifications, client letters, paychecks, and an educational evaluation. However, these were not sufficient to demonstrate that the petitioner meets the criteria for an advanced degree professional or an individual of exceptional ability.
Inconsistencies in Proposed Endeavor:
The AAO noted that the petitioner’s letters and educational evaluation did not convincingly establish the equivalence of his educational background to a U.S. bachelor’s degree or provide a clear and consistent timeline of his full-time experience.
Supporting Documentation
Letters of Intent: Not provided
Business Plan: Not applicable for this case
Advisory Letter: Provided but did not adequately support the educational equivalence claim
Other Supporting Documentation: Included certifications, client letters, paychecks, and an educational evaluation, which were insufficient to establish the petitioner’s eligibility for the EB-2 classification.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The petitioner did not establish that he meets the requirements for the EB-2 classification as either a member of the professions holding an advanced degree or as an individual of exceptional ability. Consequently, he is ineligible for a national interest waiver.
Download the Full Petition Review Here
