Date of Decision: April 18, 2018
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Project Engineering Management
Petitioner Information
Profession: Project Engineering Manager
Field: Project Engineering Management
Nationality: Not specified
Summary of Decision
Initial Decision: Approved
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Criterion 1: The Petitioner established its payment of $50,068.23 to the Beneficiary and its generation of $58,092 in net income in 2014. The Petitioner’s net income exceeded the difference between the annual proffered wage and the Petitioner’s payments to the Beneficiary.
Criterion 2: The Petitioner provided federal income tax returns and IRS Forms W-2, Wage and Tax Statements, for 2015 and 2016, showing payments to the Beneficiary and sufficient net income.
Criteria Not Met:
Criterion 1: The Petitioner did not demonstrate its ability to pay the combined proffered wages of this and another petition that remained approved after this petition’s priority date.
Criterion 2: The Petitioner’s tax returns for 2014 reflected a negative amount of net current assets, and the record did not establish the Petitioner’s ability to pay the combined proffered wages of both petitions in 2014, 2015, and 2016.
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as a project engineering manager, responsible for managing engineering projects within the trading company.
Substantial Merit and National Importance:
The findings focused on the Petitioner’s ability to pay the proffered wage rather than the substantial merit and national importance of the Beneficiary’s proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The Director concluded that, as of approval, the Petitioner did not demonstrate its required ability to pay the combined proffered wages of this and another petition, leading to the revocation of the petition’s approval. This was a key factor in the decision to deny the appeal.
Supporting Evidence:
Federal Income Tax Returns: The Petitioner provided tax returns for 2015 and 2016, showing net income and payments to the Beneficiary.
IRS Forms W-2: Wage and Tax Statements for the Beneficiary were provided for 2015 and 2016.
Inconsistencies in Proposed Endeavor:
There were no inconsistencies noted in the proposed endeavor itself, but the primary issue was the Petitioner’s ability to pay the combined proffered wages.
Supporting Documentation
Letters of Intent:
Not applicable in this case.
Business Plan:
Not applicable in this case.
Advisory Letter:
Not applicable in this case.
Any Other Supporting Documentation:
Not applicable in this case.
Conclusion
The appeal was dismissed. The Petitioner did not demonstrate its ability to pay the combined proffered wages from the priority date, leading to the denial of the appeal.
