Date of Decision: January 6, 2017
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: IT Services and Software Development
Petitioner Information
Profession: QA Analyst
Field: IT Services and Software Development
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Educational Qualification: The Beneficiary holds a U.S. master’s degree, meeting the educational requirements for advanced degree classification.
Experience: The Beneficiary has five years of progressive post-baccalaureate experience in the specialty.
Criteria Not Met:
Labor Certification Requirements: The labor certification allowed for an “Other” level of education, which might permit qualification without an advanced degree, thereby not meeting the minimum requirements for classification as an advanced degree professional.
Key Points from the Decision
Proposed Endeavor:
The Petitioner, an IT services and software development company, sought to employ the Beneficiary as a QA analyst. The position involves ensuring the quality and performance of software applications, which is critical for the company’s operations.
Substantial Merit and National Importance:
Summary: While the Petitioner’s business and the Beneficiary’s role were significant for the IT sector, the labor certification’s education and experience requirements did not align with the advanced degree classification.
Key Quotes: The decision stated that the alternate requirements listed in the labor certification did not meet the threshold for an advanced degree professional classification.
Supporting Evidence:
Summary: The Petitioner provided academic records, experience letters, and documentation of the Beneficiary’s qualifications. However, the lack of clarity in the labor certification’s requirements led to the denial.
Key Quotes: The inclusion of the phrase “will accept any suitable combination of education, training, and experience” allowed for qualification without an advanced degree, which was insufficient for the requested classification.
Inconsistencies in Proposed Endeavor:
Summary: The primary issue was the labor certification’s ambiguous educational requirements, which allowed for an “Other” level of education that might not equate to an advanced degree.
Key Quotes: The decision highlighted that the Petitioner did not provide evidence to clarify the minimum requirements advertised to the public, leading to uncertainty about the job’s qualification standards.
Supporting Documentation
Letters of Intent: Not applicable.
Business Plan: Not applicable.
Advisory Letter: Not applicable.
Other Supporting Documentation: The Petitioner provided the Beneficiary’s academic records, employment verification, and relevant documents, but these did not address the discrepancies in the labor certification’s educational requirements.
Conclusion
Final Determination: Denied
Reasoning:
The Petitioner did not establish that the position qualifies for classification as an advanced degree professional under section 203(b)(2) of the Act.
The Beneficiary’s qualifications did not meet the labor certification’s minimum requirements as the “Other” level of education allowed for qualification without an advanced degree.
The record did not contain sufficient information to determine the Petitioner’s ability to pay the proffered wage to the Beneficiary and other beneficiaries of its petitions.
Download the Full Petition Review Here
In Re: N-I-S-, Inc., JAN062017_01B5203.pdf
