Date of Decision: March 29, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: IT and Software Development
Petitioner Information
Profession: Senior Programmer/Analyst
Field: IT and Software Development
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
None specified in the decision.
Criteria Not Met:
Intention to Employ According to Labor Certification: The Petitioner did not adequately demonstrate its intention to employ the Beneficiary in accordance with the labor certification.
Bona Fide Job Offer: The Petitioner failed to establish that a bona fide job offer existed, raising questions about the worksite and employment conditions.
Ability to Pay the Proffered Wage: The Petitioner did not provide sufficient evidence of its ability to pay the proffered wage of $173,056.
Beneficiary’s Employment Experience: The Beneficiary’s documented experience did not meet the extensive specific requirements listed on the labor certification.
Key Points from the Decision
Proposed Endeavor:
The Petitioner seeks to employ the Beneficiary as a senior programmer/analyst, focusing on IT and software development at its office in Texas.
Substantial Merit and National Importance:
The decision did not provide specific findings regarding the substantial merit and national importance of the Beneficiary’s work, focusing instead on the practical issues of employment location and job offer authenticity.
Supporting Evidence:
The Petitioner provided letters of intent, tax documents, and employment letters. However, these did not sufficiently address the concerns raised about the employment location, job offer authenticity, and ability to pay the proffered wage.
Inconsistencies in Proposed Endeavor:
The primary inconsistency noted was the discrepancy between the Beneficiary’s claimed work location and the actual work conditions observed during a USCIS site visit.
Supporting Documentation
Letters of Intent:
The Petitioner submitted a letter affirming its intention to employ the Beneficiary at its Texas office.
Business Plan:
Not applicable.
Advisory Letter:
Not applicable.
Any Other Supporting Documentation:
Tax documents and employment letters were provided to demonstrate the Petitioner’s ability to pay the proffered wage and the Beneficiary’s qualifications.
Conclusion
Final Determination: The appeal was remanded.
Reasoning:
The Petitioner did not adequately demonstrate its intention to employ the Beneficiary in accordance with the labor certification, nor did it establish a bona fide job offer. Additionally, the Petitioner failed to provide sufficient evidence of its ability to pay the proffered wage and did not meet the specific employment experience requirements listed on the labor certification. The case was remanded to the Director for further proceedings and additional evidence.
Download the Full Petition Review Here
In Re: A-G-S- Inc
Document Name: MAR292017_02B5203
