Date of Decision: January 5, 2021
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Development and Testing
Petitioner Information
Profession: Software Test Engineer
Field: Software Development and Testing
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
- None: The petitioner failed to meet the evidentiary criteria required to demonstrate the ability to pay the proffered wage and the beneficiary’s qualifications.
Criteria Not Met:
- Ability to Pay Proffered Wage: The petitioner did not demonstrate the ability to pay the proffered wage from the petition’s priority date onward. The submitted tax returns, profit/loss statements, and payroll records did not meet regulatory requirements.
- Beneficiary’s Experience: The petitioner failed to demonstrate that the beneficiary met the minimum experience requirements. Inconsistencies in the employment history and lack of detailed descriptions of prior work experience were noted.
- Validity of Labor Certification: The termination of the petitioner’s corporate registration in Washington state called into question the validity of the labor certification for the intended employment location.
Key Points from the Decision
Proposed Endeavor:
The petitioner aimed to employ the beneficiary as a software test engineer. The role required the beneficiary to have a U.S. master’s degree in computer science or a related field and two years of experience, or an alternate combination of a bachelor’s degree and five years of experience.
Substantial Merit and National Importance:
Not specifically addressed due to failure to meet other fundamental requirements.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
Not specifically addressed due to failure to meet other fundamental requirements.
Supporting Evidence:
The petitioner provided federal income tax returns for 2017 and 2018, a profit/loss statement, bank account statements, and records of wage payments from July 2019 through February 2020. These were deemed insufficient as they did not meet the regulatory requirements of annual reports, federal tax returns, or audited financial statements.
Inconsistencies in Proposed Endeavor:
There were discrepancies in the employment history provided by the beneficiary and supporting letters. The petitioner’s corporate registration termination further complicated the validation of the intended employment location.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
Not provided.
Advisory Letter:
Provided but did not adequately address the discrepancies in the employment history.
Any Other Supporting Documentation:
Included payroll records and profit/loss statements, which were not sufficient to demonstrate the ability to pay the proffered wage.
Conclusion
Final Determination: The decision was remanded for further review.
Reasoning: The petitioner failed to provide sufficient evidence of the ability to pay the proffered wage, the beneficiary’s qualifying experience, and the validity of the labor certification for the specified employment location.
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