Date of Decision: December 9, 2015
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Design, Development, and Consulting
Petitioner Information
Profession: Software Engineer
Field: Software Design, Development, and Consulting
Nationality: Not Specified
Summary of Decision
Initial Decision: Revoked
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
- Petitioner’s Ability to Pay Proffered Wage in 2007: The Petitioner demonstrated its ability to pay the proffered wage of $65,000 in 2007 through IRS Forms W-2 showing payments of $69,235.24.
- Proffered Wage in 2008: The Petitioner’s tax returns indicated sufficient net income to cover the proffered wage for 2008.
Criteria Not Met:
- Petitioner’s Ability to Pay Multiple Beneficiaries: The Petitioner failed to demonstrate its ability to pay the combined proffered wages of 39 other I-140 beneficiaries that remained pending after the petition’s priority date【4†source】.
- Beneficiary’s Educational Qualifications: The record did not establish the Beneficiary’s possession of the qualifying educational credentials for the offered position as specified on the accompanying labor certification【4†source】 .
Key Points from the Decision
Proposed Endeavor:
The Petitioner sought to employ the Beneficiary as a software engineer. The proposed endeavor involved contributions to software design, development, and consulting services.
Substantial Merit and National Importance:
The findings focused on the company’s ability to support the proposed endeavor financially and the relevance of the Beneficiary’s qualifications to the job offered.
Supporting Evidence:
The Petitioner provided IRS Forms W-2, annual reports, federal income tax returns, and audited financial statements to demonstrate the ability to pay the Beneficiary’s proffered wage.
Inconsistencies in Proposed Endeavor:
Discrepancies were found in the addresses stated on various immigration-related forms and the geographic area of intended employment .
Supporting Documentation
Letters of Intent: Not applicable
Business Plan: Not applicable
Advisory Letter: Not applicable
Any other supporting documentation:
- IRS Forms W-2 for 2007 and 2008
- Federal income tax returns for 2008
Conclusion
Final Determination: The motion to reopen and reconsider was denied.
Reasoning: The record did not establish the Petitioner’s ability to pay the combined proffered wages of its beneficiaries, nor did it prove the Beneficiary’s qualifying educational credentials. Furthermore, the inconsistencies and lack of a bona fide job offer contributed to the decision.
