Date of Decision: February 7, 2023
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Sales Engineering
Petitioner Information
Profession: Sales Engineer
Field: Sales Engineering
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
None: The petitioner did not meet any of the required criteria.
Criteria Not Met:
Substantial Merit: The Petitioner did not establish that the offered position required an advanced degree.
National Importance: The Petitioner did not sufficiently demonstrate that the labor certification submitted was original or signed by the Beneficiary.
Key Points from the Decision
Proposed Endeavor
The Petitioner, a manufacturer’s representative company, intended to employ the Beneficiary as a sales engineer. The Petitioner sought to classify the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. However, the job offer portion of the labor certification stated that the position only required a bachelor’s degree in electrical engineering with no work experience.
Substantial Merit and National Importance:
The endeavor to employ the Beneficiary as a sales engineer was not found to have substantial merit or national importance. The evidence provided did not sufficiently demonstrate that the position required an advanced degree or that the labor certification was valid and supported the requested classification.
Supporting Evidence:
The Petitioner submitted a motion to reopen and reconsider, arguing that the Beneficiary’s qualifications met the requirements of an advanced degree professional. However, neither the Director’s denial nor the previous dismissal addressed the Beneficiary’s qualifications as an advanced degree professional. Both decisions were based on the fact that the offered position did not require an advanced degree.
Inconsistencies in Proposed Endeavor
The Petitioner initially filed the Form I-140 for a member of the professions holding an advanced degree without seeking a national interest waiver. Later, in the motion to reopen, the Petitioner claimed that new circumstances qualified the Beneficiary for a national interest waiver, introducing new facts not part of the original filing, constituting a material change.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
Not applicable.
Advisory Letter:
Not applicable.
Any other supporting documentation:
The record included a copy of the labor certification that was not signed by the Beneficiary and was not the original, undermining the validity of the petition.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning:
The Petitioner did not provide sufficient evidence to establish that the offered position required an advanced degree and that the labor certification was valid and supported the requested classification. Additionally, the material change in the proposed endeavor during the appeal process further weakened the petition. Without meeting the requirements for an advanced degree professional or providing a valid labor certification, the petition failed to justify approval.
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