Date of Decision: January 31, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Elementary Education
Petitioner Information
Profession: Elementary School Teacher
Field: Elementary Education
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
The Petitioner has established that it employed the Beneficiary as a first grade teacher for approximately 1 year and 9 months.
Criteria Not Met:
Ability to Pay
The Petitioner did not establish its ability to pay the proffered wage as of the priority date.
Beneficiary Qualifications
The Beneficiary did not possess the required degree or the necessary experience as stipulated by the labor certification.
Key Points from the Decision
Proposed Endeavor:
The Petitioner, an educational institution, sought to employ the Beneficiary as an elementary school teacher for first grade, claiming her role was critical for the institution’s educational goals.
Substantial Merit and National Importance:
The Petitioner argued that its status as a nonprofit government-funded school should be considered under the precedent set by Matter of Sonegawa, but failed to demonstrate exceptional circumstances akin to those in the Sonegawa case.
Key Quote: “The record contains both a 2013 printout of the Petitioner’s registration with the State Of New Mexico that indicates it is not in good standing and a February 5, 2016, statement from the Petitioner’s business manager in which she indicates that the Petitioner is experiencing a ‘budget shortage.'”
Supporting Evidence:
The Petitioner provided evidence of the Beneficiary’s employment as a first grade teacher and other related positions, but the evidence was insufficient to meet the qualifications outlined in the labor certification.
Key Quote: “The Beneficiary’s license does not establish that she is eligible for the offered teaching position under the requirements stated in the labor certification.”
Inconsistencies in Proposed Endeavor:
Discrepancies were found in the Beneficiary’s employment history, particularly in the dates and nature of her previous teaching positions.
Despite submissions of various employment certificates and affidavits, the evidence failed to resolve these inconsistencies.
Supporting Documentation
Letters of Intent:
Not provided.
Business Plan:
Not provided.
Advisory Letter:
Not provided.
Other Supporting Documentation:
Multiple employment certificates and affidavits were provided but were insufficient to resolve discrepancies and meet the labor certification requirements.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning:
The Petitioner did not establish its ability to pay the proffered wage.
The Beneficiary did not possess the required education and experience for the offered position as specified in the labor certification.
Download the Full Petition Review Here
In Re: D-Y-H-O JAN312017_01B5203.pdf
