Date of Decision: April 14, 2017
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Consulting
Petitioner Information
- Profession: Programmer Analyst
- Field: Software Consulting and Staffing
- Nationality: [Not specified]
Summary of Decision
- Initial Decision: Denied
- Appeal Outcome: Remanded for further consideration
Evidentiary Criteria Analysis
Criteria Met:
Advanced Degree Equivalent: The beneficiary holds a bachelor’s degree in engineering from India, which, combined with over five years of progressive post-baccalaureate experience, qualifies as the equivalent of a master’s degree for EB-2 classification purposes.
Criteria Not Met:
Proof of Experience: Initially, the Director did not recognize the beneficiary’s provisional degree certificate as the official academic record for calculating the required experience.
Ability to Pay: The petitioner did not provide sufficient evidence of its ability to pay the proffered wage from the priority date onward.
Key Points from the Decision
Proposed Endeavor:
The petitioner sought to employ the beneficiary as a programmer analyst, leveraging his skills and experience in software development and systems design.
Substantial Merit and National Importance:
The petitioner’s role in providing software consulting services has significant value in the IT sector. However, the primary focus of the decision was on the qualifications and experience of the beneficiary.
Key Quote: “We conclude, based on the specific circumstances and evidence in this case, that the provisional degree certificate constitutes the official academic record of the Beneficiary’s ‘degree’ for purposes of dating the degree and calculating the five-year period of post-graduate experience.”
Supporting Evidence:
The petitioner submitted various documents including the beneficiary’s provisional degree certificate, formal diploma, statements of marks, and a letter from the university registrar confirming the completion date of the degree requirements.
Key Quote: “The provisional degree certificate, together with the statements of marks, demonstrates that the Beneficiary completed all the substantive requirements and that the university approved his degree.”
Inconsistencies in Proposed Endeavor:
The decision did not highlight specific inconsistencies in the proposed endeavor but focused on the need for additional evidence to support the petitioner’s claims regarding the beneficiary’s experience and the ability to pay the proffered wage.
Supporting Documentation
Letters of Intent: Not specifically mentioned.
Business Plan: Not applicable.
Advisory Letter: Included a letter from the university registrar confirming the degree completion date.
Other Supporting Documentation:
Provisional degree certificate
Formal diploma
Statements of marks
Employment verification letters
Conclusion
Final Determination: The appeal was remanded for further consideration.
Reasoning:
The petitioner successfully demonstrated that the beneficiary met the educational and experience requirements for the EB-2 classification by recognizing the provisional degree certificate as the valid date for calculating post-baccalaureate experience. However, the petitioner failed to provide adequate evidence of its ability to pay the proffered wage. The case was remanded to the Director for further proceedings to address this issue and any other pertinent matters.
