Date of Decision: August 23, 2022
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Engineering
Petitioner Information
Profession: Senior Software Engineer
Field: Software Engineering
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Job Duties Similarity: The petitioner argued that the job duties of the Senior Software Engineer are substantially similar to those of the Software Engineer III position originally certified by the Department of Labor (DOL).
Progression in Role: The petitioner’s promotion of the beneficiary from Software Engineer III to Senior Software Engineer was claimed to be a normal career progression based on annual performance.
Criteria Not Met:
Position Requirements: The Senior Software Engineer position had different educational and experience requirements compared to the original labor certification.
Salary Discrepancy: The offered salary for the Senior Software Engineer position was significantly higher than the one certified by DOL, suggesting a materially different job offer.
Key Points from the Decision
Proposed Endeavor:
The petitioner intended for the beneficiary to continue in a higher-level software engineering role, leveraging their advanced degree and experience to contribute significantly to the company’s projects.
Substantial Merit and National Importance:
The petitioner did not sufficiently demonstrate that the elevated role and responsibilities of the Senior Software Engineer position had substantial merit or national importance beyond the initial Software Engineer III role.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The appeal did not establish that waiving the labor certification requirements would benefit the United States, primarily due to discrepancies in job duties, educational requirements, and salary.
Supporting Evidence:
The petitioner provided letters from company officials, job postings, and articles on career progression in software engineering. However, this evidence did not align sufficiently with the requirements of the labor certification.
Inconsistencies in Proposed Endeavor:
The appeal highlighted discrepancies between the job duties, educational qualifications, and salary of the offered position and those certified by the DOL. This inconsistency undermined the petitioner’s case.
Supporting Documentation
Letters of Intent:
The petitioner included a letter from a company official explaining the beneficiary’s promotion and career progression.
Business Plan:
Not applicable.
Advisory Letter:
Not applicable.
Any other supporting documentation:
The petitioner submitted organizational charts and career progression information, but this did not resolve the discrepancies noted by the director.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The petitioner failed to demonstrate that the labor certification remained valid for the Senior Software Engineer position due to differences in job duties, educational requirements, and salary.
Download the Full Petition Review Here
