Date of Decision: January 2, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Healthcare Management
Petitioner Information
Profession: Operations Manager
Field: Home Healthcare Services
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Motions to Reopen and Reconsider: Denied (seven times)
Evidentiary Criteria Analysis
Criteria Met:
Labor Certification: The Petitioner successfully obtained labor certification, indicating that there are insufficient U.S. workers available for the position and that employing a foreign national will not harm the wages and working conditions of U.S. workers.
Criteria Not Met:
Ability to Pay Proffered Wage: The Petitioner failed to establish its ability to pay the proffered wage of $156,520 per year from the priority date of September 22, 2010, onward. The Petitioner’s net income and net current assets in each year from 2010 to 2016 were insufficient to cover the proffered wage of this Beneficiary and the wages of all other I-140 beneficiaries.
Submission of Required Evidence: The Petitioner did not submit complete information about its other I-140 beneficiaries, precluding a material line of inquiry.
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as an operations manager in its home healthcare services. The role involves overseeing the daily operations, managing staff, and ensuring compliance with healthcare regulations.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary focus was on verifying the Petitioner’s financial ability to pay the proffered wages.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, and documentation of the Beneficiary’s qualifications and the company’s financial statements.
Further Submissions on Appeal and Motions to Reopen: Provided additional financial records, including tax returns and Kinnser Reports, intended to demonstrate the Petitioner’s ability to pay the proffered wage.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was the lack of sufficient evidence demonstrating the Petitioner’s ability to pay the proffered wages of the Beneficiary and other I-140 beneficiaries. The Petitioner did not provide audited financial statements or comprehensive information about its other beneficiaries’ wage obligations.
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:
Kinnser Reports: Provided net revenues for 2015-2018 but lacked completeness and did not derive from audited financial statements.
Tax Returns: Included federal income tax returns, but the amended returns did not change the previous determination regarding the Petitioner’s ability to pay the proffered wage.
Conclusion
Final Determination: The seventh motion to reopen and reconsider was denied.
Reasoning: The Petitioner did not meet the burden of proof required to establish eligibility for the immigration benefit sought. Despite repeated attempts, the Petitioner failed to demonstrate its continuing ability to pay the proffered wage from the priority date onward. The evidence provided, including Kinnser Reports and tax returns, was insufficient to establish the Petitioner’s financial capability. Consequently, the initial decision to deny the petition was upheld, and all subsequent motions to reopen and reconsider were denied. The Petitioner must address these financial deficiencies in any future filings to establish eligibility.
