Date of Decision: February 15, 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: Software Development and IT Services
Nationality: Not specified
Summary of Decision
Initial Decision: Approved
Appeal Outcome: Sustained
Evidentiary Criteria Analysis
Criteria Met:
Ability to Pay Proffered Wage: The Petitioner established its ability to pay the Beneficiary the proffered wage of $80,955 per year from the priority date of November 23, 2009, onward.
Totality of Circumstances: Considering the overall magnitude of the Petitioner’s business activities, the Petitioner demonstrated the ability to pay the proffered wages of its other Form I-140 beneficiaries.
Criteria Not Met:
Initially, the Director found that the Petitioner did not establish its continuing ability to pay the proffered wage to the Beneficiary and all other Form I-140 beneficiaries.
Key Points from the Decision
Proposed Endeavor:
The Petitioner seeks to employ the Beneficiary as a software engineer. The role involves developing and managing software solutions as part of the company’s IT services.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor. The primary focus was on the Petitioner’s ability to pay the proffered wages.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition, labor certification, and financial documentation to demonstrate the ability to pay the proffered wage.
Further Submission on Appeal: Provided additional financial records, including net income, net current assets, and the totality of the company’s business activities.
Inconsistencies in Proposed Endeavor:
The primary inconsistency was related to the initial finding that the Petitioner did not demonstrate its ability to pay the proffered wages of the Beneficiary and other Form I-140 beneficiaries. The appeal focused on providing comprehensive financial documentation to address this issue.
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: Included net income, net current assets, and evidence of the wages paid to the Beneficiary and other I-140 beneficiaries.
Conclusion
Final Determination: The appeal was sustained, and the decision to revoke the approval of the petition was withdrawn.
Reasoning:
The Petitioner met the burden of proof required to establish eligibility for the immigration benefit sought. By considering the totality of the Petitioner’s circumstances, including the overall magnitude of its business activities and financial records, the Petitioner demonstrated its continuing ability to pay the proffered wage of the Beneficiary, as well as the proffered wages of its other I-140 beneficiaries. Consequently, the initial decision to revoke the petition approval was overturned, and the appeal was sustained.
