Date of Decision: August 6, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Energy Analysis
Petitioner Information
Profession: Senior Energy Analyst
Field: Energy Analysis
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Motion to Reopen and Motion to Reconsider: Denied
Evidentiary Criteria Analysis
Criteria Met:
Qualifying Experience: The Petitioner established that the Beneficiary had the qualifying experience required for the offered job.
Ability to Pay: The Petitioner demonstrated its continuing ability to pay the proffered wage from the priority date onward, as shown by the provided Forms W-2 and federal income tax returns.
Criteria Not Met:
Validity of Labor Certification: The Petitioner willfully misrepresented a material fact regarding a familial relationship on the labor certification, which led to its invalidation.
Material Misrepresentation: The misrepresentation was material to the Beneficiary’s eligibility, as it shut off a line of inquiry relevant to the job’s bona fide nature and availability to U.S. workers.
Key Points from the Decision
Proposed Endeavor:
The Petitioner seeks to employ the Beneficiary as a senior energy analyst, focusing on providing strategic consulting services in the energy sector.
Substantial Merit and National Importance:
The decision document did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary issues were procedural compliance and the validity of the labor certification.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, and supporting documents.
Further Submission on Motion to Reopen: Included additional evidence and assertions regarding ineffective assistance of counsel and the Petitioner’s ability to pay the proffered wage.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was the Petitioner’s false statement on the labor certification denying any familial relationship between the Beneficiary and the Petitioner, which was later contradicted by evidence showing that the Beneficiary and the Petitioner’s founder/president are brothers.
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:
Forms W-2 and Tax Returns: Demonstrated the Petitioner’s ability to pay the proffered wage from the priority date onward.
Affidavits and Statements: Included a declaration from counsel and statements explaining the misrepresentation and asserting it was due to an inadvertent error by counsel.
Conclusion
Final Determination: The motion to reopen and motion to reconsider were denied.
Reasoning:
The Petitioner did not meet the burden of proof required to establish eligibility for the immigration benefit sought due to the willful misrepresentation on the labor certification. The regulations governing USCIS filings do not permit excusing such misrepresentations based on claims of inadvertent error or ineffective assistance of counsel. The Petitioner failed to demonstrate that the job opportunity was a bona fide position open to U.S. workers, and thus the labor certification remains invalid. As a result, the prior decision to deny the petition for lack of a valid labor certification was upheld, and the motions to reopen and reconsider were denied.
