Date of Decision: MAR. 08, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology
Petitioner Information
Profession: Software Developer
Field: Information Technology
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Criterion 1: The Petitioner corrected the error on the Form I-140 regarding the permanence of the position, clarifying that the position is permanent and full-time.
Criterion 2: The Petitioner provided supporting documentation, including job announcement postings, to substantiate the full-time nature of the offered position.
Criteria Not Met:
Criterion 1: The Petitioner did not initially provide evidence of paying the Beneficiary the full proffered wage from the priority date onward, which is necessary for demonstrating the ability to pay.
Criterion 2: The Petitioner did not submit all required paystubs for 2021 or the Beneficiary’s 2021 Form W-2, hindering the ability to determine the full proffered wage payment.
Key Points from the Decision
Proposed Endeavor: The Petitioner seeks to employ the Beneficiary as a software developer, emphasizing the advanced technical expertise required for this role in the information technology industry.
Substantial Merit and National Importance: The Petitioner highlighted the critical role of the Beneficiary in developing and optimizing software systems, which are vital for business operations and technological advancements.
Supporting Evidence: The evidence included a corrected Form I-140, job announcement postings, and the company’s 2021 IRS Form 1120 demonstrating taxable income before deductions, supporting the ability to pay the proffered wage.
Inconsistencies in Proposed Endeavor: The Director identified a discrepancy in the permanence of the job offer, initially marked as not permanent. The Petitioner clarified this as an error and provided a corrected Form I-140. Additionally, incomplete evidence of wage payments from the priority date onward necessitated further review.
Supporting Documentation
Letters of Intent: Not specified
Business Plan: Not specified
Advisory Letter: Not specified
Any other supporting documentation: Job announcement postings, corrected Form I-140, and the company’s 2021 IRS Form 1120.
Conclusion
Final Determination: The appeal was remanded.
Reasoning: The Petitioner corrected the error regarding the permanence of the job position and provided substantial evidence supporting the full-time nature of the employment offer. However, the incomplete evidence of wage payments necessitated further review of the ability to pay. The matter was remanded for additional evidence and analysis regarding the ability to pay the Beneficiary the proffered wage from the priority date onward.
