Date of Decision: November 20, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology Services
Petitioner Information
Profession: Senior Software Engineer
Field: Information Technology Services
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
Timeliness of Motion:
The petitioner successfully demonstrated that the motion to reopen was timely filed within the regulatory period.
Criteria Not Met:
Ability to Pay Proffered Wage:
The petitioner did not establish its ability to pay the proffered wage of $130,666 per year for the beneficiary as well as its obligations to all other I-140 petition beneficiaries.
Key Points from the Decision
Proposed Endeavor:
The petitioner seeks to employ the beneficiary as a senior software engineer, responsible for developing and managing software projects and consulting on IT solutions.
Substantial Merit and National Importance:
The petitioner’s work in IT consulting has potential merit and national importance. However, the petitioner must demonstrate the ability to pay the proffered wage as required by the labor certification process.
Supporting Evidence:
The petitioner submitted the beneficiary’s pay stubs, a letter from the U.S. Controller, and the 2018 annual report of its parent company. However, the petitioner did not provide specific evidence of its ability to pay the proffered wages of all its I-140 beneficiaries.
Inconsistencies in Proposed Endeavor:
The petitioner failed to provide a complete list of all I-140 beneficiaries and the corresponding proffered wages. The evidence provided did not sufficiently demonstrate the petitioner’s financial capacity to meet its wage obligations.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
Not applicable.
Advisory Letters:
Not applicable.
Any other supporting documentation:
The petitioner submitted bank statements and tax returns, but these did not establish the ability to pay the proffered wage consistently.
Conclusion
Final Determination:
The appeal was dismissed. The petitioner did not establish the continuing ability to pay the proffered wages of the instant beneficiary and all other I-140 beneficiaries from the priority date onward.
Reasoning:
The evidence provided did not adequately demonstrate the petitioner’s ability to pay the proffered wage. The petitioner’s financial documentation showed a shortfall in net income and net current assets, and a complete list of I-140 beneficiaries was not provided. Consequently, the petition was denied based on the inability to meet the wage payment requirements.
