Date of Decision: December 14, 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: Approved
Evidentiary Criteria Analysis
Criteria Met:
Job Duties Similarity: The petitioner demonstrated that the job duties of the offered position (Senior Software Engineer) vary only slightly from those certified by the DOL (Software Engineer III), with a 90% overlap.
Criteria Not Met:
None Noted: The Director’s determination that the positions were different due to a 10% discrepancy in job duties was not upheld.
Key Points from the Decision
Proposed Endeavor:
The petitioner’s proposed endeavor involved developing and implementing software to contribute to the vision and design of search, browse, and category pages for desktop and mobile properties, maintaining and enhancing backend microservices, and providing technical support.
Substantial Merit and National Importance:
The endeavor was found to have substantial merit and national importance due to the technical nature of the work and its contribution to high-performance, scalable systems.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The appeal concluded that waiving the requirements of the Labor Certification process would be beneficial due to the petitioner’s ability to contribute significantly to the field of software engineering, which is of substantial merit and national importance.
Supporting Evidence:
Letters from company officials and a detailed comparison of job duties were provided, demonstrating the progression and similarity in job duties between the certified position and the offered position.
Supporting Documentation
Letters of Intent:
A letter from a company official indicated that the promotion to Senior Software Engineer was a normal progression of employment without a material change in job duties.
Business Plan:
Not applicable.
Advisory Letter:
Not applicable.
Any Other Supporting Documentation:
A detailed comparison of the job duties and the percentage of time spent on each duty was provided, showing a 90% overlap in job duties between the two positions.
Conclusion
Final Determination: The appeal was sustained, and the petition’s approval was reinstated.
Reasoning: The changes in the offered position’s job duties were deemed not material, and the petition was supported by sufficient evidence to justify the slight discrepancy in job titles.
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