Date of Decision: February 28, 2018
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Pharmacy Management
Petitioner Information
Profession: Pharmacy Manager
Field: Pharmacy Management
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
None: The Petitioner did not sufficiently meet the criteria required to demonstrate the continuing ability to pay the proffered wage.
Criteria Not Met:
Ability to Pay: The Petitioner failed to provide sufficient evidence of its ability to pay the proffered wage of $128,315 per year from the priority date of August 26, 2016, onward. The evidence provided, including net income and net current assets for 2016, was insufficient to cover the proffered wage.
Key Points from the Decision
Proposed Endeavor:
The Petitioner, a pharmacy, sought to employ the Beneficiary as a pharmacy manager. The petition was intended to secure lawful permanent resident status for the Beneficiary based on his advanced degree and professional experience.
Substantial Merit and National Importance:
The decision does not specifically address the merit or importance of the proposed endeavor due to the focus on the Petitioner’s failure to demonstrate the ability to pay the proffered wage.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The Petitioner failed to establish its ability to pay the proffered wage, as required by 8 C.F.R. § 204.5(g)(2). The Petitioner’s net income and net current assets for 2016 were insufficient to meet the wage requirement, and no additional evidence for subsequent years was provided.
Supporting Evidence:
The Petitioner submitted its federal income tax return for 2016, which reflected a net income of $37,358 and net current assets of $88,864. However, these amounts were insufficient to pay the full proffered wage. The Petitioner also requested that USCIS prorate the proffered wage for the portion of 2016 after the priority date, but this request was denied. Additionally, the Petitioner’s assertion that contractor wages could be used to pay the Beneficiary was not supported by sufficient evidence.
Inconsistencies in Proposed Endeavor:
The primary issue was the Petitioner’s failure to submit adequate financial documentation to demonstrate its continuing ability to pay the proffered wage from the priority date onward.
Supporting Documentation
Letters of Intent:
No specific letters of intent were summarized in the decision.
Business Plan:
No specific business plan was summarized in the decision.
Advisory Letter:
No specific advisory letters were summarized in the decision.
Any Other Supporting Documentation:
The Petitioner submitted IRS Forms 1099-MISC for contractors but did not provide evidence that these contractors’ duties matched those of the offered position or that the Beneficiary would replace them.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The Petitioner did not establish its continuing ability to pay the proffered wage from the priority date onward, resulting in the dismissal of the appeal.
