Date of Decision: April 15, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Engineering
Petitioner Information
Profession: Software Engineer
Field: Software Engineering
Nationality: Not specified
Summary of Decision
Initial Decision: Approved
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Advanced Degree Requirement: The Petitioner initially provided evidence that the Beneficiary held an advanced degree, which supported the classification request under the second preference immigrant category.
Professional Experience: Initial documentation showed the Beneficiary’s professional experience aligned with the job offer as a software engineer.
Criteria Not Met:
Job Requirements: The job offer portion of the labor certification did not demonstrate that the position required a professional holding an advanced degree or the equivalent.
Beneficiary Qualifications: The Beneficiary did not meet the requirements for the offered job as stipulated in the labor certification, specifically in terms of major field of study and experience.
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as a software engineer. The proposed endeavor involved the Beneficiary working in software engineering, developing and maintaining software solutions for the company.
Substantial Merit and National Importance:
The decision noted that while software engineering is a field of substantial merit, the Petitioner failed to demonstrate the national importance of the Beneficiary’s specific proposed endeavor.
Supporting Evidence:
Initial Evidence: The Petitioner initially provided letters of intent and supporting documentation that seemed to substantiate the Beneficiary’s qualifications and the importance of the proposed endeavor.
Further Review: Upon review, inconsistencies were found regarding the Beneficiary’s major field of study, professional experience, and the actual job requirements.
Inconsistencies in Proposed Endeavor:
The review revealed that the Petitioner misrepresented the Beneficiary’s qualifications and the primary worksite of the job. Additionally, there were discrepancies in the job requirements stated in the labor certification compared to the actual qualifications of the Beneficiary.
Supporting Documentation
Letters of Intent:
The letters of intent initially presented did not align with the final review findings, which showed discrepancies in the Beneficiary’s qualifications and job requirements.
Business Plan:
Not applicable in this case.
Advisory Letter:
Advisory letters provided were part of the initial evidence but were found insufficient upon detailed review, particularly in addressing the specific job requirements and the Beneficiary’s qualifications.
Any other supporting documentation:
Other documentation included employment verification and educational credentials, which were ultimately deemed insufficient to meet the evidentiary criteria for the EB-2 NIW classification.
Conclusion
Final Determination: The motion to reopen and motion to reconsider were denied.
Reasoning:
The denial was based on multiple factors, including the failure to address all grounds for dismissal of the initial appeal, discrepancies in the job requirements and the Beneficiary’s qualifications, and the automatic revocation of the petition due to the Petitioner’s business termination. The Petitioner did not meet the burden of proof to establish eligibility for the benefit sought.
