Date of Decision: November 14, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Oil and Gas Consulting
Petition Information
Profession: Software Developer
Field: Software Development for Oil and Gas Industry
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
The Petitioner provided evidence that it paid the Beneficiary a portion of the proffered wage in 2016.
The Petitioner asserted it was a disregarded entity for tax purposes, claiming its financial results were included on the tax returns of its parent entity.
Criteria Not Met:
The Petitioner did not provide regulatory-prescribed evidence of its ability to pay the proffered wage from the priority date onward.
The Petitioner failed to establish that the Beneficiary met the required six months of experience in the job offered or as a programmer analyst.
Key Points from the Decision
Proposed Endeavor:
The Beneficiary was to be employed as a software developer for the Petitioner, an oil and gas consulting firm.
Substantial Merit and National Importance:
The petition emphasized the importance of skilled software developers in the oil and gas industry, contributing to the efficiency and effectiveness of industry operations through advanced software solutions.
Supporting Evidence:
The Petitioner submitted a copy of IRS Form W-2 for 2016, demonstrating that it paid the Beneficiary $83,102.02 in gross wages.
The Petitioner provided a letter from its CFO stating its net income for 2015, but this was insufficient as the Petitioner did not employ 100 or more workers and the letter alone was not acceptable.
Inconsistencies in Proposed Endeavor:
The Petitioner’s claim of being a disregarded entity for tax purposes was not supported by the provided tax return, which did not list the Petitioner.
The Petitioner’s financial statements were unaudited and lacked independent verification.
The Beneficiary’s experience letter did not meet the regulatory requirements as it lacked the employer’s address and had inconsistencies in its formatting.
Supporting Documentation
Letters of Intent: Not applicable.
Business Plan: Not applicable.
Advisory Letter: Not applicable.
Other Supporting Documentation: The Petitioner provided financial statements and a W-2 form, but these were not sufficient to establish the ability to pay the proffered wage.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The Petitioner failed to provide sufficient evidence of its ability to pay the proffered wage from the priority date onward. Additionally, the Petitioner did not establish that the Beneficiary met the required experience qualifications for the job. The provided financial documents were unaudited, and the experience letter lacked necessary details and consistency. Therefore, the appeal was dismissed.
