Date of Decision: October 26, 2015
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Senior Programmer Analyst
Petitioner Information
Profession: Senior Programmer Analyst
Field: Commercial Real Estate Management
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
Criterion 1: Demonstrated employment of the Beneficiary in the offered position since January 1, 2004, through Forms W-2 for the years 2006-2011.
Criterion 2: Provided evidence of payments to the Beneficiary that exceeded the proffered wage in 2011.
Criteria Not Met:
Criterion 1: Did not establish the Petitioner’s continuing ability to pay the proffered wage from the petition’s priority date onward due to inconsistencies in financial statements and net current assets.
Criterion 2: Did not demonstrate the Petitioner’s intention to employ the Beneficiary in the offered position as described in the labor certification due to a significant decline in the number of employees.
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as a senior programmer analyst. The proposed job duties included directing programmers and analysts to make database system changes and training users.
Substantial Merit and National Importance:
The decision did not elaborate on substantial merit and national importance beyond stating the Petitioner’s industry involvement and history. The focus was on the financial capabilities and employment consistency of the Petitioner.
Supporting Evidence:
The Petitioner provided IRS Forms W-2 and 1099-MISC, financial statements, and amended tax returns. However, these documents contained inconsistencies that undermined their reliability.
Key quotes or references: “The Petitioner’s tax returns reflect sufficient net current assets in 2007, 2008, 2009, 2010, 2012, and 2013. However, we do not find the Petitioner’s tax returns to be reliable evidence of its ability to pay.”
Inconsistencies in Proposed Endeavor:
The Petitioner’s documentation failed to consistently account for additional compensation claimed in Forms 1099-MISC and showed discrepancies in net current assets due to unsubstantiated loans.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
Not applicable.
Advisory Letter:
Not applicable.
Any other supporting documentation:
The record included financial statements and tax returns, which did not reliably demonstrate the Petitioner’s ability to pay the proffered wage consistently.
Conclusion
Final Determination: Appeal dismissed.
Reasoning: The decision cited the Petitioner’s inability to prove the ability to pay the proffered wage and the intention to employ the Beneficiary as specified in the labor certification due to inconsistencies and unreliable financial evidence.
