Date of Decision: December 2, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology Development
Petitioner Information
Profession: IT Development Leader
Field: Information Technology
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Labor Certification: The Petitioner obtained certification from the U.S. Department of Labor (DOL) indicating that there are insufficient U.S. workers able, willing, qualified, and available for the offered position.
Experience Requirements: The labor certification confirmed that the Beneficiary had three years of experience in the job offered or in a position using specified programming languages and technologies.
Criteria Not Met:
Minimum Educational Requirement: The Beneficiary did not possess a U.S. bachelor’s degree or a foreign equivalent degree as required by the labor certification.
Equivalency of Degree: The Petitioner did not demonstrate that the Beneficiary’s three-year bachelor’s degree from an Indian university was equivalent to a U.S. bachelor’s degree, which typically requires four years of study.
Key Points from the Decision
Proposed Endeavor:
The Petitioner seeks to employ the Beneficiary as an IT development leader. This role involves overseeing and managing software development projects, utilizing advanced programming skills, and leading a team of developers to create innovative IT solutions.
Substantial Merit and National Importance:
The decision document did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary focus was on the educational qualifications and the equivalency of the Beneficiary’s foreign degree to a U.S. bachelor’s degree.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, copies of the Beneficiary’s diploma and marks memoranda from the Indian university, and an independent evaluation of the Beneficiary’s educational credentials.
Further Submission on Appeal: Provided additional arguments and documents to address the Director’s findings, including explanations of the Beneficiary’s educational background and the equivalency evaluation.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was the educational credential evaluation, which stated that the Beneficiary’s three-year bachelor’s degree is equivalent to three years of U.S. university studies, not a four-year U.S. bachelor’s degree. This did not meet the regulatory requirement for the advanced degree professional classification.
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:
Educational Credentials: Included diploma, marks memoranda, and an independent evaluation stating the degree is equivalent to three years of U.S. university studies.
Explanation on Appeal: Argued that the combination of the Beneficiary’s education and experience equates to a U.S. bachelor’s degree.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning:
The Beneficiary did not meet the minimum educational requirements for the requested classification as an advanced degree professional. The Petitioner failed to demonstrate that the Beneficiary’s foreign bachelor’s degree is equivalent to a U.S. bachelor’s degree, as required by the labor certification. The independent evaluation confirmed that the degree equates to three years of U.S. university studies, which is insufficient. Additionally, the Petitioner’s arguments regarding the regulatory interpretation of “advanced degree” and “equivalent” were not accepted. As a result, the initial decision to deny the petition was upheld, and the appeal was dismissed.
