Date of Decision: August 30, 2018
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Travel and Expense Management Services
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:
None: The Petitioner did not meet the necessary criteria to establish itself as the successor in interest or provide valid labor certification.
Criteria Not Met:
Successor in Interest: The Petitioner did not establish itself as the successor in interest to the labor certification employer.
Validity of Labor Certification: The Petitioner failed to demonstrate the continuous ability of both it and the labor certification employer to pay the proffered wage.
Required Documentation: The Petitioner did not submit required evidence, such as annual reports, federal income tax returns, or audited financial statements, to establish the employer’s ability to pay.
Key Points from the Decision
Proposed Endeavor:
The Petitioner, a provider of travel and expense management services, sought to employ the Beneficiary as a senior software engineer. The petition was intended to secure lawful permanent resident status for the Beneficiary based on their advanced degree and professional experience.
Substantial Merit and National Importance:
The decision does not specifically address the merit or importance of the proposed endeavor due to the failure to meet other key criteria, such as the validity of labor certification and the ability to pay the proffered wage.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The Petitioner did not provide sufficient evidence to establish itself as a successor in interest or demonstrate the continuous ability to pay the proffered wage, which is critical for waiving the Labor Certification requirements.
Supporting Evidence:
The Petitioner submitted documentation of a “reverse triangular merger” and claimed the Beneficiary remained on the payroll after the submission of the labor certification application. However, this evidence was insufficient to establish the Petitioner as a successor in interest or validate the labor certification.
Inconsistencies in Proposed Endeavor:
There were no significant inconsistencies noted in the proposed endeavor. The primary issue was the lack of sufficient evidence to support the Petitioner’s claims regarding successor in interest and the ability to pay the proffered wage.
Supporting Documentation
Letters of Intent:
No specific letters of intent were summarized in the decision.
Business Plan:
No specific business plan was summarized in the decision.
Advisory Letter:
No specific advisory letters were summarized in the decision.
Any Other Supporting Documentation:
The Petitioner provided documentation of the merger and payroll records but did not submit required financial documentation to establish the ability to pay the proffered wage.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The Petitioner did not establish itself as a successor in interest and failed to provide sufficient evidence to validate the labor certification or demonstrate the ability to pay the proffered wage.
