Date of Decision: April 26, 2018
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Technical Consulting
Petitioner Information
Profession: Senior Technical Consultant
Field: Content Management Software
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
The Petitioner submitted the Beneficiary’s payroll records and Form W-2 for 2016, showing payments exceeding the proffered wage for that year.
Criteria Not Met:
The Petitioner did not demonstrate its ability to pay the proffered wage in 2014 and 2015.
The Petitioner did not submit required evidence for 2014 and 2015, such as annual reports, federal income tax returns, or audited financial statements.
The Petitioner did not establish the Beneficiary’s possession of the minimum experience required for the offered position by the priority date.
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as a senior technical consultant, responsible for developing and managing content management software solutions.
Substantial Merit and National Importance:
The findings focused on the Petitioner’s financial ability to pay the proffered wage and the Beneficiary’s qualifications for the position rather than the substantial merit and national importance of the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process
The Director concluded that the Petitioner did not meet the necessary evidentiary criteria to support the Beneficiary’s qualifications and the validity of the labor certification for the requested classification. This was a key factor in the decision to deny the appeal.
Supporting Evidence:
The Petitioner provided federal income tax returns, payroll records, and Form W-2 for the Beneficiary, demonstrating payments exceeding the proffered wage in 2016.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was the Beneficiary’s qualifications for the advanced degree professional classification, which did not meet the minimum requirements stated on the labor certification.
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: Not applicable in this case.
Conclusion
The appeal was dismissed. The Petitioner did not establish its continuing ability to pay the proffered wage from the priority date onward and did not demonstrate the Beneficiary’s possession of the minimum experience required for the offered position by the priority date.
