Date of Decision: November 10, 2015
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Information Technology Services
Petitioner Information
Profession: Software Engineer
Field: Information Technology Services
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
Ability to Pay: The petitioner demonstrated its ability to pay the proffered wage based on its amended, pro forma federal tax returns for 2013 and 2014. However, the petitioner failed to demonstrate its ability to pay the combined proffered wages of multiple beneficiaries.
Criteria Not Met:
Continuing Ability to Pay: The petitioner failed to demonstrate its continuing ability to pay the proffered wage from the petition’s priority date onward, considering the requirement to pay wages for multiple petitions.
Qualifying Experience: The record did not establish the Beneficiary’s possession of the required experience specified on the accompanying labor certification by the petition’s priority date.
Key Points from the Decision
Proposed Endeavor:
The petitioner, T-C- Inc., proposed to permanently employ the Beneficiary as a software engineer, focusing on developing, creating, and modifying computer applications and specialized utility programs.
Substantial Merit and National Importance:
The appeal focused on the substantial merit and national importance of the Beneficiary’s proposed work. However, it was concluded that the petitioner failed to establish the substantial merit and national importance of the proposed endeavor adequately.
Supporting Evidence
- Financial Documentation: The petitioner provided amended federal income tax returns, demonstrating positive net income for 2013 and 2014.
- Employment History: The petitioner submitted letters detailing the Beneficiary’s employment history, but inconsistencies in dates and font sizes cast doubt on their authenticity.
Inconsistencies in Proposed Endeavor:
The Beneficiary’s claimed experience included discrepancies in the employment dates with a previous employer, raising doubts about the authenticity and accuracy of the submitted documentation.
Supporting Documentation
Letters of Intent:
The record did not specify any letters of intent.
Business Plan:
No business plan was provided or required for this particular appeal.
Advisory Letter:
Two letters were submitted by the Beneficiary’s previous employer, but inconsistencies in the employment dates and formatting issues raised questions about their credibility.
Any Other Supporting Documentation:
- Tax Returns: The petitioner submitted both initial and amended pro forma federal income tax returns, reflecting positive net income after corrections by a different accountant.
- W-2 Forms: The Beneficiary’s IRS Forms W-2 for 2013 and 2014 were provided, showing payments made by the petitioner, but these did not meet the annual proffered wage requirement.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The decision was based on the petitioner’s failure to demonstrate a continuing ability to pay the proffered wage for multiple petitions and unresolved inconsistencies in the Beneficiary’s claimed qualifying experience.
