Date of Decision: March 8, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology
Petitioner Information
Profession: Information Technology Specialist
Field: Information Technology
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Advanced Degree: The Petitioner provided an official academic record showing a bachelor’s degree in computer science from a Brazilian university, and an evaluation indicating the degree’s equivalence to a U.S. baccalaureate degree. The evaluation also recognized the Petitioner’s 16 years of work experience as equivalent to a master’s degree in information technology.
Criteria Not Met:
Progressive Post-Baccalaureate Experience: The Petitioner did not provide sufficient evidence in the form of letters from former employers documenting at least five years of progressive post-baccalaureate experience in the specialty.
Member of the Professions Holding an Advanced Degree: The evidence provided did not fully meet the regulatory requirements to support the classification.
Key Points from the Decision
Proposed Endeavor
The Petitioner seeks to continue working as an information technology specialist, leveraging his extensive experience and advanced education to contribute to the field of IT in the United States.
Substantial Merit and National Importance:
The Director’s initial decision questioned whether the Petitioner’s proposed endeavor in IT held substantial merit and national importance. However, this decision has been withdrawn for further review.
Supporting Evidence:
The Petitioner provided a detailed resume, letters from current and former employers, an educational evaluation, and other supporting documents. However, the evidence was deemed insufficient to establish the required progressive post-baccalaureate experience.
Inconsistencies in Proposed Endeavor
The Director’s initial analysis included multiple references to a “business plan” that the Petitioner did not actually submit. This led to concerns about whether the Director fully evaluated the RFE response and the evidence provided.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
The Director’s decision incorrectly mentioned a business plan that was not submitted by the Petitioner.
Advisory Letter:
The Petitioner included letters from an educational evaluator and other documents supporting his qualifications, but these did not fully meet the required evidentiary standards.
Any other supporting documentation:
The Petitioner included an Employment and Social Security Book issued by the Brazilian Ministry of Labor, which identified employers, job titles, and salaries but did not meet the criteria for letters from former employers documenting the necessary experience.
Conclusion
Final Determination: The appeal has been remanded for further review and consideration of additional evidence.
Reasoning:
The Petitioner did not provide sufficient evidence to fully meet the regulatory requirements for classification as a member of the professions holding an advanced degree or as an individual of exceptional ability. The Director’s initial analysis did not fully consider the Petitioner’s RFE response and misidentified the submitted evidence.
