Date of Decision: December 22, 2016
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology Development and Consulting
Petitioner Information
Profession: Software Engineer
Field: Information Technology / Software Engineering
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Net Current Assets: The petitioner demonstrated sufficient net current assets in 2013 to cover the proffered wage for the beneficiary alone.
Criteria Not Met:
Combined Proffered Wages: The petitioner failed to demonstrate its ability to pay the combined proffered wages of all its pending petitions from the priority date onward.
Required Experience: The petitioner did not establish the beneficiary’s possession of the required 60 months of qualifying experience.
Key Points from the Decision
Proposed Endeavor:
The petitioner aimed to employ the beneficiary as a software engineer, responsible for developing and maintaining software applications for their clients.
Substantial Merit and National Importance:
While the role of a software engineer holds substantial intrinsic merit, the petitioner failed to demonstrate its ability to pay the combined proffered wages for all pending petitions and did not provide sufficient evidence of the beneficiary’s required experience.
Supporting Evidence:
The petitioner provided federal income tax returns for 2013, showing net current assets of $225,755.
The petitioner identified nine other pending petitions but did not provide adequate information regarding the combined proffered wages for these petitions or whether the wages were paid.
The beneficiary’s employment letters and payroll records indicated discrepancies and did not clearly demonstrate continuous, full-time employment.
Inconsistencies in Proposed Endeavor:
Discrepancies were noted in the beneficiary’s employment records, including variations in the employer’s Federal Employer Identification Number (FEIN) and inconsistent payroll documentation.
Supporting Documentation
Letters of Intent: Not applicable.
Business Plan: Not applicable.
Advisory Letter: Not applicable.
Any Other Supporting Documentation:
Copies of federal income tax returns, employment letters, payroll records, and Forms W-2.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning:
The petitioner did not provide sufficient evidence to demonstrate the ability to pay the combined proffered wages for all its pending petitions from the priority date onward. Additionally, the petitioner did not resolve discrepancies in the beneficiary’s employment records, failing to establish the required 60 months of qualifying experience. Consequently, the petition for an EB-2 National Interest Waiver was denied.
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