Date of Decision: January 29, 2019
Service Center: Nebraska 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: IT Solutions
Nationality: Not specified
Summary of Decision
Initial Decision: Approved
Revocation Decision: Approved
Appeal Outcome: Remanded
Final Appeal Outcome: Denied
Motion to Reconsider Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Advanced Degree: The Petitioner demonstrated that the Beneficiary holds an advanced degree in Information Technology, qualifying him for the EB-2 classification.
Criteria Not Met:
Work Experience: The Petitioner did not resolve discrepancies regarding the Beneficiary’s work experience, which was necessary to meet the labor certification’s experience requirement.
Affected Party Standing: The Beneficiary did not establish his standing to file motions as he did not meet the conditions to be considered an “affected party” under relevant DHS regulations.
Key Points from the Decision
Proposed Endeavor:
The Petitioner, an IT solutions provider, sought to employ the Beneficiary as a senior programmer analyst. The role involved developing and implementing software solutions for various clients.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed work. The focus was on resolving discrepancies in the Beneficiary’s work experience and legal standing to file motions.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, educational credentials, and employment verification letters.
Further Submission on Appeal: Provided additional employment verification and legal arguments, which were found insufficient.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was related to the discrepancies in the Beneficiary’s work experience. The evidence provided did not clearly document the required experience, leading to the revocation of the petition’s approval. Additionally, the Beneficiary did not establish his legal standing as an affected party under DHS regulations, which was necessary to file motions to reopen or reconsider.
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:
Employment Verification Letters: Provided but lacked clarity and consistency regarding the Beneficiary’s required work experience.
Legal Arguments: Included references to case law and USCIS policy but did not establish the Beneficiary’s standing as an affected party.
Conclusion
Final Determination: The motion to reconsider was denied.
Reasoning: The Beneficiary did not meet the burden of proof required to establish his standing as an affected party, nor did he resolve the discrepancies in his work experience. The regulation and policy guidance clearly state that only those who meet specific conditions, such as communicating a request to change employers before revocation, can be considered affected parties. The Beneficiary failed to meet these conditions, and the provided legal arguments did not apply to his case. Consequently, the initial decision to deny the motion to reconsider was upheld, and the case was closed. The Petitioner must ensure accurate documentation of work experience and adherence to legal standing requirements in future filings to avoid similar issues.
