Date of Decision: March 2, 2023
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: Systems Analyst
Field: Software Development and Information Technology Services
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Rejected
Evidentiary Criteria Analysis
Criteria Met:
- Job Offer Similarity: Both job offers describe the role as involving “technology architecture, systems, software and resources across multiple modules,” with an annual proffered wage of $96,554.
- Job Requirements: Both job offers require a master’s degree in business administration, computer science, or a related field of study, plus one year of experience in the job offered or as a software/systems designer, developer, analyst, or related occupation.
Criteria Not Met:
- Geographical Area of Employment: The job offer on the labor certification lists the intended employment area as the certification employer’s headquarters in Virginia, whereas the Petitioner’s offer includes their headquarters in New Jersey.
- Proffered Wage and Recruitment Area: The differences in the location of the headquarters would have likely resulted in different proffered wages and geographic recruitment areas, affecting the labor market test.
Key Points from the Decision
Proposed Endeavor:
The Petitioner, a provider of software development and other IT services, sought to amend a prior approved petition to employ the Beneficiary as a systems analyst. The Beneficiary would work at various client sites across the United States, similar to the previous job offer.
Substantial Merit and National Importance:
The role involves substantial merit and national importance due to its focus on advanced technology and systems integration across multiple modules. However, the appeal was denied due to discrepancies in the intended employment location and recruitment areas.
Supporting Evidence:
The Petitioner provided evidence of leasing an office in the same metropolitan statistical area as the headquarters of the labor certification employer and highlighted two clients within that area.
Inconsistencies in Proposed Endeavor:
The Petitioner’s claim of acquiring the labor certification employer’s first successor was found inconsistent with records indicating a sale, not an acquisition. Additionally, discrepancies in the proposed employment location raised doubts about the Petitioner’s successorship.
Supporting Documentation
Letters of Intent:
The Petitioner submitted letters indicating potential client sites within the same metropolitan area as the labor certification employer’s headquarters.
Business Plan:
A detailed business plan outlining the Petitioner’s operations and potential client sites was provided, but it did not resolve the discrepancies in the employment location and acquisition timeline.
Advisory Letter:
An advisory letter from the operations manager-HR was included, stating the Beneficiary’s employment status and the company’s acquisition details, which were found inconsistent with other evidence.
Any other supporting documentation:
Additional documentation included online articles and annual reports, which contradicted the Petitioner’s claims of acquisition and current ownership status.
Conclusion
Final Determination: The appeal was rejected due to the Petitioner not establishing itself as the labor certification employer’s successor and discrepancies in the proposed job offer.
Reasoning: The Petitioner failed to demonstrate a matching job offer in terms of the geographical area of employment and proffered wage, as well as inconsistencies in the claimed acquisition of the labor certification employer’s first successor.
