Date of Decision: February 23, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Market and Branding Analysis
Petitioner Information
Profession: Market and Branding Analyst
Field: Market and Branding Analysis
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Petitioner’s Operations and Employment:
The petitioner is a restaurant operations business established in 2011, employing 11 workers and paying $264,839 in employee wages in 2015.
Current Employment and Payment:
The petitioner submitted evidence indicating that the beneficiary is currently employed and being paid the proffered wage in 2016.
Criteria Not Met:
Ability to Pay Proffered Wage:
The petitioner failed to demonstrate its ability to pay the proffered wage of $71,300 per year from the priority date onward. The evidence included net income and net current assets for 2015 that were insufficient to cover the proffered wage.
Financial Discrepancies:
There were inconsistencies between the wages reported on the petitioner’s tax returns and the wages claimed in other submitted documents, and the petitioner’s tax return address did not match the address listed on the labor certification and Form I-140.
Key Points from the Decision
Proposed Endeavor:
The petitioner sought to employ the beneficiary as a market and branding analyst, emphasizing the importance of this role in managing the branding and marketing strategies for the restaurant operations business.
Substantial Merit and National Importance:
While the role of market and branding analyst is important for the petitioner’s business, the petitioner did not establish that the beneficiary’s work has national importance or substantial merit beyond the immediate business operations.
Supporting Evidence:
Financial Records:
The petitioner provided IRS Forms 941, Employer’s Quarterly Federal Tax Returns, and the beneficiary’s 2015 IRS Form W-2. However, the financial records indicated a net loss and insufficient net current assets to meet the proffered wage.
Officer Compensation:
The petitioner’s 2015 federal tax return indicated officer compensation amounts, but there was no indication that the shareholders were willing to forgo a portion of their compensation to meet the proffered wage.
Inconsistencies in Proposed Endeavor:
The petitioner’s financial documents showed discrepancies in reported wages and net assets, and there was a lack of supporting documentation for claims regarding royalty fees and management agreements with other entities.
Supporting Documentation
Letters of Intent:
Not applicable in this case.
Business Plan:
Not applicable in this case.
Advisory Letter:
Not applicable in this case.
Other Supporting Documentation:
IRS Forms 941:
The petitioner provided quarterly federal tax returns showing total wages paid in 2015.
IRS Form W-2:
The beneficiary’s 2015 wage statement indicating $62,400 in gross pay.
Conclusion
Final Determination:
The appeal was dismissed, and the petition was ultimately denied.
Reasoning:
The petitioner did not establish its ability to pay the proffered wage from the priority date onward, and there were unresolved inconsistencies in the financial evidence provided.
Download the Full Petition Review Here
In Re: S-1-, Inc.
Document: FEB232017_01B5203.pdf
