Date of Decision: January 31, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology
Petitioner Information
Profession: IT Business Analyst
Field: Information Services
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Labor Certification Requirement: The Petitioner submitted a valid labor certification with the initial petition
Criteria Not Met:
Successor-in-Interest Relationship: The Petitioner did not establish that it is the successor-in-interest to the company that filed the labor certification. This was necessary to use the labor certification in support of its petition.
Transfer of Business Rights and Obligations: The Petitioner failed to demonstrate that it acquired the essential rights and obligations of its predecessor necessary to carry on the business in the same manner
Key Points from the Decision
Proposed Endeavor:
The Petitioner, an information services company, sought to employ the Beneficiary as an IT business analyst. The role involved analyzing and managing information systems and processes for various clients.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed work. The focus was primarily on the legal and procedural aspects of the successor-in-interest relationship and the validity of the labor certification.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, and business merger documentation.
Further Submission on Appeal: Provided additional documentation related to the merger and acquisition process, which was found insufficient.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was related to the Petitioner’s claim of being a successor-in-interest. The evidence provided did not substantiate the transfer of essential business rights and obligations from the predecessor to the Petitioner. The Petitioner failed to demonstrate that it acquired the necessary assets and operations to carry on the business in the same manner as the predecessor.
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:
Merger Agreement: Provided but did not establish the transfer of essential business rights and obligations.
Employee Management and Services Agreement (EMSA): Indicated the transfer of employees but not business assets or operations.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The Petitioner did not meet the burden of proof required to establish a valid successor-in-interest relationship. The documentation provided did not demonstrate the transfer of essential business rights and obligations necessary to carry on the predecessor’s business. Consequently, the labor certification could not be used in support of the petition. The initial decision to deny the petition was upheld on appeal, and the Petitioner must obtain its own labor certification from the Department of Labor for future filings to ensure compliance with the requirements.
