Date of Decision: February 1, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Nursing
Petitioner Information
Profession: Registered Nurse
Field: Healthcare
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Labor Certification: The Petitioner successfully obtained labor certification, indicating insufficient U.S. workers available for the position and that employing a foreign national will not harm the wages and working conditions of U.S. workers.
Criteria Not Met:
Beneficiary’s Qualifications: The Beneficiary did not meet the minimum educational and experience requirements stipulated by the ETA Form 9089. The Beneficiary’s degree was equivalent to a U.S. bachelor’s degree, not a master’s degree as required by the labor certification.
Ability to Pay Proffered Wage: The Petitioner did not establish its ability to pay the combined proffered wages of this and other immigrant petitions.
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as a registered nurse. The role involved providing professional nursing services in a healthcare setting and supervising other nurses.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary focus was on verifying the Beneficiary’s qualifications and the Petitioner’s ability to pay the proffered wage.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, and documentation of the Beneficiary’s experience and educational qualifications. Further Submission on Appeal: Provided additional evidence and arguments regarding the Beneficiary’s qualifications and the Petitioner’s financial status.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was related to the Beneficiary’s qualifications and the Petitioner’s ability to pay the proffered wage. The evidence provided did not demonstrate that the Beneficiary had the required five years of post-baccalaureate experience in a supervisory nursing role.
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:
Experience Letters: Provided by previous employers but lacked specific job duty descriptions relevant to the supervisory role required by the job offer.
Financial Records: Included a paystub and tax return for 2016 but did not demonstrate the ability to pay the combined proffered wages for all petitions.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning:
The Petitioner did not meet the burden of proof required to establish eligibility for the immigration benefit sought. The Beneficiary did not possess the required master’s degree or five years of qualifying experience as of the priority date, and the Petitioner did not establish its ability to pay the combined proffered wages of this and other immigrant petitions. Consequently, the initial decision to deny the petition was upheld, and the appeal was dismissed. The Petitioner must address these deficiencies in any future filings to establish eligibility.
