Date of Decision: December 13, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Development
Petitioner Information
Profession: Senior Software Engineer
Field: Software Development and Consulting Services
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Educational Requirement: The Beneficiary’s educational credentials meet the requirements of the labor certification. The Beneficiary holds a degree equivalent to a U.S. bachelor’s degree in computer science, engineering, or business administration.
Criteria Not Met:
Ability to Pay Proffered Wage: The Petitioner did not provide sufficient evidence of its ability to pay the proffered wage of $99,050 per year from the priority date onward.
Experience Requirement: The Beneficiary’s experience documentation did not meet the regulatory requirements, lacking specific details and verification of job duties performed.
Key Points from the Decision
Proposed Endeavor:
The Petitioner seeks to employ the Beneficiary as a senior software engineer, focusing on developing and consulting on software solutions for various clients. The role involves technical leadership, project management, and innovation in software development.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary focus was on verifying the educational and experience qualifications and the Petitioner’s ability to pay the proffered wage.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, educational credentials, and letters of support from colleagues.
Further Submission on Appeal: Provided additional financial documents, experience letters, and arguments addressing the Director’s findings.
Inconsistencies in Proposed Endeavor:
The primary inconsistencies were related to the financial documentation and the Beneficiary’s experience letters. The Petitioner did not provide complete tax returns for 2016 and 2018, and the experience letters lacked specific details required by the regulations.
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:
Experience Letters: Included letters from a previous employer in India, but they lacked specific details about the writer’s title and the Beneficiary’s job duties.
Financial Records: Provided tax returns for 2014, 2015, and 2017, but not for 2016 and 2018.
Conclusion
Final Determination: The decision of the Director is withdrawn, and the case is remanded for further proceedings.
Reasoning:
The Petitioner established that the Beneficiary meets the educational requirements of the labor certification. However, the Petitioner did not provide sufficient evidence of its ability to pay the proffered wage for all relevant years and did not adequately document the Beneficiary’s qualifying experience. The case is remanded for the Director to request additional evidence on the Petitioner’s ability to pay the proffered wage and to verify the Beneficiary’s experience. The Director will issue a new decision based on this additional information.
