Date of Decision: April 17, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: IT Services
Petitioner Information
Profession: Senior Software Engineer
Field: IT Services
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Employment: The Beneficiary was employed by the Petitioner before and after the priority date, establishing a continuous employment history.
Partial Wage Payment: The Petitioner provided evidence of wages paid to the Beneficiary, though these did not meet the proffered wage amount.
Criteria Not Met:
Ability to Pay: The Petitioner failed to demonstrate its ability to pay the proffered wage of $130,666 per year from the priority date onward for all I-140 beneficiaries.
Comprehensive Evidence: The Petitioner did not provide sufficient, verifiable evidence to support its claimed ability to pay all proffered wages based on its net income and net current assets.
Key Points from the Decision
Proposed Endeavor:
The Petitioner intended to employ the Beneficiary as a senior software engineer, a role requiring advanced IT skills and experience. The position involved software development, data processing consulting, business process re-engineering, and enterprise resource planning.
Substantial Merit and National Importance:
The decision did not focus on the substantial merit and national importance of the Beneficiary’s proposed endeavor, as the primary issue was the Petitioner’s ability to pay the proffered wage.
Supporting Evidence:
Initial Evidence: Included Forms W-2 showing wages paid to the Beneficiary in 2016, federal income tax returns, and a chart listing other I-140 beneficiaries and their wages.
Further Review: Found that the Petitioner’s net income and net current assets were insufficient to meet the proffered wage obligations for all I-140 beneficiaries.
Inconsistencies in Proposed Endeavor:
There were no inconsistencies noted in the proposed endeavor itself. The primary issue was the financial capability of the Petitioner to meet wage obligations.
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: Provided evidence of wages paid to the Beneficiary.
Federal Income Tax Returns: Showed the Petitioner’s financial status, including net income and net current assets.
Chart of I-140 Beneficiaries: Listed other beneficiaries, their proffered wages, and wages paid.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning:
The Petitioner did not meet the burden of proof required to establish its ability to pay the proffered wages for all I-140 beneficiaries from the priority date onward. The analysis showed a shortfall between the Petitioner’s net income and net current assets and the total proffered wages. Additionally, the Petitioner did not provide sufficient evidence of its financial stability or potential alternative resources to cover the wage obligations. The decision was based on the totality of circumstances and the inability to demonstrate financial capability as required by the regulations.
