Date of Decision: March 13, 2015
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 Design and Development
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Approved
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Proffered Wage: The petitioner demonstrated that it paid the beneficiary the full proffered wage in 2007, 2008, and 2013, and partial wages in other relevant years.
- Professional Experience: The beneficiary claimed to have worked for the petitioner since May 5, 2005, fulfilling the requirement for an advanced degree.
Criteria Not Met:
- Ability to Pay: The petitioner failed to establish the continuing ability to pay the proffered wage from the priority date in 2007 through 2013.
- Submission of Required Documents: The petitioner did not provide a copy of its 2008 federal income tax return and failed to provide all requested information concerning its multiple beneficiaries.
Key Points from the Decision
Proposed Endeavor:
The petitioner sought to employ the beneficiary as a software engineer to enhance its software design, development, and consultation services.
Substantial Merit and National Importance:
While the proposed endeavor holds substantial merit, the petitioner did not sufficiently demonstrate the ability to pay the beneficiary’s proffered wage throughout the specified period.
Supporting Evidence:
The petitioner provided tax returns, wage statements, and a chart listing the names, status of employment, petition status, priority date, proffered wage, and wages paid for some beneficiaries. However, it failed to provide complete information for all beneficiaries.
Inconsistencies in Proposed Endeavor:
The record indicated inconsistencies in the petitioner’s financial ability to pay the proffered wage across all relevant years, undermining the reliability of the job offer.
Supporting Documentation
Letters of Intent:
The petitioner did not submit relevant letters of intent.
Business Plan:
Not provided.
Advisory Letter:
Not provided.
Any Other Supporting Documentation:
The petitioner provided Forms W-2 and a spreadsheet of beneficiaries but failed to include the proffered wage, date of withdrawal, date of denial, or date that a beneficiary became a lawful permanent resident for all beneficiaries.
Conclusion
The appeal was dismissed due to the petitioner’s inability to establish the continuing ability to pay the proffered wage from the priority date through 2013 and failure to submit all required documentation.
