EB-2 NIW USCIS Appeal Review – Software Engineer – APR252019_01B5203

Date of Decision: April 25, 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: Software Engineer
Field: Information Technology Solutions
Nationality: Not specified

Summary of Decision

Initial Decision: Denied
Appeal Outcome: Remanded

Evidentiary Criteria Analysis

Criteria Met:

Ability to Pay: The Petitioner provided additional evidence on appeal demonstrating its ability to pay the combined proffered wages of this and other petitions from the priority date onward.

Financial Documentation: The Petitioner submitted the required financial records, showing the capability to meet wage obligations for all sponsored beneficiaries.

Criteria Not Met:

Intention to Employ: The Petitioner did not demonstrate a clear intention to employ the Beneficiary in the offered position at its headquarters in Texas.

Consistency of Worksite: The record did not establish whether the Beneficiary would be employed at the Petitioner’s headquarters or client sites, leading to inconsistencies in the proposed employment location.

Key Points from the Decision

Proposed Endeavor:
The Petitioner aims to employ the Beneficiary as a software engineer at its headquarters in Texas. The role involves developing and maintaining software solutions for the company’s clients.

Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The focus was primarily on the ability to pay and the intention to employ the Beneficiary at the specified location.

Supporting Evidence:

Initial Submission: Included financial statements and historical data to demonstrate the Petitioner’s financial stability and profitability.

Further Review: Required clarification on the Beneficiary’s intended worksite and the duration of employment at the headquarters.

Inconsistencies in Proposed Endeavor:
The primary inconsistency was the lack of clear evidence showing the Petitioner’s intention to employ the Beneficiary at its headquarters in Texas, as required by 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:

Financial Records: Provided detailed financial information to support the ability to pay the proffered wage.

Statements from Petitioner: Included a statement from the Petitioner’s president regarding the Beneficiary’s temporary work at client sites and the intention to eventually employ him at the headquarters.

Conclusion

Final Determination: The decision of the Director was withdrawn, and the case was remanded for further review.
Reasoning:
The Petitioner met the burden of proof required to establish the ability to pay the proffered wage from the priority date onward. However, the Petitioner did not provide sufficient evidence of its intention to permanently employ the Beneficiary in the offered position at its headquarters. The Director is instructed to request additional information to clarify the Beneficiary’s worksite and employment conditions. The Petitioner must address these requirements and present a complete case for reconsideration, demonstrating a consistent and clear intention to employ the Beneficiary as described in the labor certification.

Download the Full Petition Review Here

Victor Chibuike
Victor Chibuike

A major in Programming,Cyber security and Content Writing

Articles: 532

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