sustained EB-3

sustained EB-3 Case: Software Engineering

📅 Date unknown 👤 Company 📂 Software Engineering

Decision Summary

The Director initially denied the petition, concluding the petitioner did not demonstrate the intent to pay the required prevailing wage because the initial filing listed a lower amount. The appeal was sustained because the petitioner provided sufficient evidence, including a prior petition and a credible explanation, to show that listing the beneficiary's current salary instead of the proffered wage was an inadvertent error and that the company did intend to pay the required amount.

Criteria Discussed

Intent To Pay Proffered/Prevailing Wage

View Full Decision Text

U.S. Citizenship
and Immigration
Services
In Re: 20313 734
Appeal of Nebraska Service Center Decision
Form 1-140, Immigrant Petition for Professional
Non-Precedent Decision of the
Administrative Appeals Office
Date : JAN. 17, 2023
The Petitioner, a provider of credit research and analytics, seeks to permanently employ the Beneficiary
as a senior software engineer. The company requests his classification in the third-preference, immigrant
visa category as a professional. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii),
8 U.S.C. § 1153(b )(3)(A)(ii).
The Director of the Nebraska Service Center denied the petition . The Director concluded that the
Petitioner did not demonstrate its required intent to pay the Beneficiary the offered position's
proffered /prevailing wage . See section 204(b) of the Act, 8 U.S.C. § 1154(b) (requiring the federal
government to determine that the facts stated in an immigrant visa petition are true). On appeal, the
Petitioner asserts that the Director misinterpreted case law and disregarded evidence of the company's
intent to pay the required wage.
The petition initially stated a proffered wage below the prevailing wage. But a preponderance of
evidence establishes the Petitioner's intent to pay the required amount. See 20 C.F .R. § 656.10( c )( 1)
(requiring an employer to certify that their proffered wage equals or exceeds the prevailing wage
determined by the U.S. Department of Labor and that they will pay at least the prevailing wage).
Offering the same position to the Beneficiary in a different immigrant visa category , the company
attested on a prior petition that it would pay him at least the proffered /prevailing wage . Also, in
response to the Director's notice of intent to deny this petition, the Petitioner amended the filing and
credibly and sufficiently explained the petition's inadvertent listing of the Beneficiary's current salary
as his proffered wage.
A preponderance of evidence demonstrates the Petitioner's intent to pay the Beneficiary the offered
position's proffered /prevailing wage . We will therefore withdraw and reverse the Director's decision .
ORDER: The appeal is sustained.

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