Date of Decision: April 21, 2017
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: International Sales Development
Petitioner Information
Profession: Marketing Specialist
Field: International Sales Development
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Advanced Degree Equivalent: The beneficiary’s qualifications in the field of international sales development were recognized, but this alone did not suffice for the approval of the petition.
Criteria Not Met:
Ability to Pay Proffered Wage: The petitioner failed to provide sufficient evidence to establish its ability to pay the proffered wage of $153,670 per year from the priority date onward.
Key Points from the Decision
Proposed Endeavor:
The petitioner sought to employ the beneficiary in the role of marketing specialist, leveraging his expertise to support the company’s international sales development efforts.
Substantial Merit and National Importance:
The decision emphasized the petitioner’s inability to demonstrate financial stability and the ongoing viability of the job offer, casting doubt on the substantial merit and national importance of the proposed endeavor.
Key Quote: “The petitioner must demonstrate that a valid employment relationship exists, that a bona fide job opportunity is available to U.S. workers.”
Supporting Evidence:
The petitioner submitted financial statements, tax returns, bank statements, and pay stubs, but these were insufficient to prove the ability to pay the proffered wage.
Key Quote: “The petitioner operates under a different tax identification number than the entity for which tax returns were submitted. The assets of its owners, or other unrelated entities, cannot be considered in determining the petitioning company’s ability to pay the proffered wage.”
Inconsistencies in Proposed Endeavor:
The primary inconsistency noted was the submission of financial documents from multiple entities with similar names, making it unclear whether the petitioner itself had the financial capacity to pay the beneficiary.
Supporting Documentation
Letters of Intent: Not specifically mentioned.
Business Plan: Not applicable.
Advisory Letter: Included a declaration from the chief financial officer (CFO), which was not accepted due to insufficient identifying information.
Other Supporting Documentation:
Financial statements from multiple entities
Tax returns
Bank statements
Pay stubs
Conclusion
Final Determination: The appeal was dismissed, and the initial decision was upheld.
Reasoning:
The petitioner failed to provide the required financial documentation specific to the petitioning entity to prove its ability to pay the proffered wage. Additionally, the ongoing viability of the petitioner’s business was in question due to indications of potential bankruptcy. Consequently, the petition for an EB-2 National Interest Waiver was denied.
