Date of Decision: December 12, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology and Consulting Services
Petitioner Information
Profession: Software Engineer
Field: Information Technology and Consulting Services
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded for Further Consideration
Evidentiary Criteria Analysis
Criteria Met:
The petitioner provided evidence of payments made to the beneficiary.
The petitioner demonstrated its net income exceeded the difference between the proffered wage and the wages paid to the beneficiary for 2015.
Criteria Not Met:
The petitioner did not demonstrate its ability to pay the proffered wage in 2016.
The petitioner did not establish its ability to pay the combined proffered wages of this and other petitions filed.
Key Points from the Decision
Proposed Endeavor:
The petitioner, a provider of information technology and consulting services, sought to employ the beneficiary as a software engineer with a proffered wage of $81,952 per year.
Substantial Merit and National Importance:
Not directly applicable in this case, as the primary issue was the petitioner’s financial ability to pay the proffered wage and compliance with filing requirements.
Supporting Evidence:
The petitioner submitted IRS Form W-2 indicating it paid the beneficiary $75,086 in 2015 and payroll records showing $50,673 paid as of May 31, 2016.
The petitioner provided its federal income tax returns for 2015, which reflected a net income of $107,905 but a negative amount of net current assets.
Inconsistencies in Proposed Endeavor:
The petitioner did not provide sufficient information to determine its ability to pay the combined proffered wages of all pending and approved petitions.
The petitioner did not submit requested information about the priority dates and proffered wages of other I-140 petitions filed.
Supporting Documentation
Letters of Intent:
Not specified in the document.
Business Plan:
Not specified in the document.
Advisory Letter:
Not specified in the document.
Any other supporting documentation:
IRS Form W-2, payroll records, federal income tax returns.
Conclusion
Final Determination: The decision of the Director is withdrawn and the matter is remanded for further proceedings.
Reasoning:
The petitioner did not sufficiently demonstrate its ability to pay the combined proffered wages of multiple I-140 petitions. The Director should request additional evidence from the petitioner, including information about other filed I-140 petitions, and review the entire record upon receipt of a timely response. The matter is remanded for further consideration of the petitioner’s ability to pay the wages of its multiple petitions.
