Date of Decision: September 27, 2019
Service Center: Texas 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: [Nationality]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Professional Standing: The petitioner demonstrated the beneficiary’s qualifications as a senior software engineer with relevant experience.
Criteria Not Met:
Ability to Pay Proffered Wage: The petitioner did not provide sufficient evidence to demonstrate the ability to pay the proffered wage from the priority date onward.
Validity of Labor Certification: Initially, the labor certification was deemed invalid due to inconsistencies in the job location stated on the petition and the labor certification.
Key Points from the Decision
Proposed Endeavor:
The petitioner aims to employ the beneficiary as a senior software engineer to develop and manage software systems, enhancing operational efficiency and business processes.
Substantial Merit and National Importance:
The endeavor holds substantial merit in the field of software engineering. However, it was not deemed to have substantial national importance justifying a national interest waiver.
Supporting Evidence:
Financial Documentation: The petitioner provided a copy of its 2018 federal income tax return, which reflected net income of $33,400 and net current assets of $302,365. However, this was insufficient to cover the $76,596.50 difference between the proffered wage and the wages paid to the beneficiary in 2018.
Inconsistencies in Proposed Endeavor:
The initial decision noted inconsistencies in the job location as stated on the petition and the labor certification. Additionally, the petitioner’s financial records were insufficient to demonstrate ongoing ability to pay the proffered wage for multiple beneficiaries.
Supporting Documentation
Letters of Intent: Not applicable as the NIW does not require a specific job offer.
Business Plan: Not provided.
Advisory Letter: Included but did not sufficiently address national importance.
Other Documentation: Educational evaluations, IRS Forms W-2, federal income tax returns, payroll records, and profit-and-loss statements were provided, but key documents were missing.
Conclusion
Final Determination: The appeal is dismissed. The petitioner did not adequately demonstrate the beneficiary’s qualifications and the ability to meet the advanced degree professional requirements.
Reasoning:
The decision emphasized the need for comprehensive and consistent documentation to support the beneficiary’s qualifications and the petitioner’s ability to pay the proffered wage. The labor certification was initially deemed invalid due to inconsistencies in job location, and the petitioner’s financial records were incomplete, failing to establish the ability to pay the combined proffered wages of multiple beneficiaries.
