Date of Decision: November 8, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Engineering
Petitioner Information
Profession: Director of Software Engineering
Field: Software Engineering
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Advanced Degree: The Beneficiary was determined to qualify as a member of the professions holding an advanced degree in software engineering.
Criteria Not Met:
- Ability to Pay the Proffered Wage: The Petitioner, a healthcare technology company, did not establish its ability to pay the proffered wage of $169,312 per year. The evidence provided, including unaudited financial statements and a draft tax return, did not sufficiently demonstrate the Petitioner’s ability to pay the wage as required by the regulations.
Key Points from the Decision
Proposed Endeavor:
The Petitioner, a healthcare technology company, sought to employ the Beneficiary as its Director of Software Engineering. The position required a professional holding an advanced degree in software engineering.
Ability to Pay the Proffered Wage:
The appeal was dismissed because the Petitioner failed to demonstrate its ability to pay the proffered wage from the priority date of the petition until the Beneficiary obtains lawful permanent residency. The Petitioner provided unaudited financial statements and a draft tax return showing a net income of -$287,099 and net current assets of -$1,791,236 for the year 2021. This evidence was deemed insufficient to meet the regulatory requirements for establishing the ability to pay.
The Petitioner argued that its parent company’s financial resources should be considered in determining its ability to pay the wage. However, the Director determined that the financial resources of the parent company could not be considered because the Petitioner and its parent company are separate legal entities. The parent company’s tax return showed a net income of $68,909 and net current assets of -$2,302,826, which were also insufficient to demonstrate the ability to pay the proffered wage.
The Director noted that the Petitioner failed to provide primary evidence, such as a federal tax return, audited financial statements, or an annual report, as required by the regulations. The Petitioner’s financial situation, as demonstrated by the unaudited financial statements and draft tax return, did not support the ability to pay the wage.
Conclusion
Final Determination: The appeal was denied because the Petitioner did not establish its ability to pay the proffered wage for the Beneficiary. The evidence provided was insufficient to demonstrate compliance with the regulatory requirements for the EB-2 classification.
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