Date of Decision: August 18, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology
Petitioner Information
Profession: Senior Programmer Analyst
Field: Information Technology
Nationality: Not specified
Summary of Decision
Initial Decision: Approved, then Revoked
Appeal Outcome: Revocation Withdrawn, Remanded for Further Consideration
Evidentiary Criteria Analysis
Criteria Met:
The petitioner initially met the requirements for the advanced degree classification.
Not applicable, as the main issue was the concealment of the beneficiary’s role.
Criteria Not Met:
The petitioner did not establish that the job opportunity was clearly open to U.S. workers.
The petitioner did not adequately demonstrate its continuing ability to pay the proffered wage.
Key Points from the Decision
Proposed Endeavor:
The petitioner aimed to employ the beneficiary as a senior programmer analyst.
Substantial Merit and National Importance:
Not directly addressed in the revocation decision, as the main issues were procedural and related to the beneficiary’s role and the company’s ability to pay.
Supporting Evidence:
The petitioner submitted letters from prior employers to establish the beneficiary’s experience.
Federal income tax returns and other financial documents were provided but did not conclusively demonstrate the ability to pay the proffered wage.
Inconsistencies in Proposed Endeavor:
The beneficiary’s identification as a vice president and his familial relationship with the petitioner’s sole shareholder raised doubts about the bona fide nature of the job opportunity.
The petitioner did not sufficiently document recruitment efforts or compliance with Department of Labor regulations.
Supporting Documentation
Letters of Intent:
Not specified in the document.
Business Plan:
Not specified in the document.
Advisory Letter:
Not specified in the document.
Any other supporting documentation:
Federal income tax returns, by-laws, corporate amendments, and records of the beneficiary’s employment and ownership roles.
Conclusion
Final Determination: The appeal resulted in the withdrawal of the revocation decision and remanding for further proceedings.
Reasoning:
The Director’s notice of intent to revoke and the revocation decision did not adequately specify reasons that would have warranted the petition’s denial. However, the petitioner did not conclusively demonstrate the bona fide nature of the job opportunity and the ability to pay the proffered wage. Therefore, the case is remanded for further proceedings, including issuing a new notice of intent to revoke detailing these issues and allowing the petitioner a reasonable opportunity to respond.
