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I-140 Ability to Pay RFE

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  • I-140 Ability to Pay RFE

    My employer got ability to pay RFE. I work for a small startup consulting company.
    My employer shared RFE with me.
    According to this RFE employer assets are only 7K more than my preferred wage.
    Employer submitted multiple petitions for other employees ( I guess 4 others, 2 approved , 2 pending). USCIS issued following RFE
    "petitioner must produce evidence that it has has the ability to pay the prefered wages
    for each beneficiary of its filed petitions"
    If petitioner thinks that he has not available funds to cover all beneficiaries , indicate which petition to continue ,which petition to withdraw"

    Gurus , I need your help ,

    1. Looks like this is complex RFE , since my employer small consulting firm , he will get revenue only on
    consulting services provided by his employees
    Does anybody went through similar scenario? if yes, do you guys know probability of winning?

    2. Do you think good attorney will help in this case?

    Would be great if you suggest some direction for me. Thank you very much for the help.

  • #2
    Originally posted by nvmurthy View Post
    My employer got ability to pay RFE. I work for a small startup consulting company.
    My employer shared RFE with me.
    According to this RFE employer assets are only 7K more than my preferred wage.
    Employer submitted multiple petitions for other employees ( I guess 4 others, 2 approved , 2 pending). USCIS issued following RFE
    "petitioner must produce evidence that it has has the ability to pay the prefered wages
    for each beneficiary of its filed petitions"
    If petitioner thinks that he has not available funds to cover all beneficiaries , indicate which petition to continue ,which petition to withdraw"

    Gurus , I need your help ,

    1. Looks like this is complex RFE , since my employer small consulting firm , he will get revenue only on
    consulting services provided by his employees
    Does anybody went through similar scenario? if yes, do you guys know probability of winning?

    2. Do you think good attorney will help in this case?

    Would be great if you suggest some direction for me. Thank you very much for the help.
    Nothing will help this situation. The employer screwed up by over committing.

    Comment


    • #3
      curyph corner

      Hi

      I joined the company on March 1 ,2012 and the company applied for Greencard labour on July 10 ,2012 with Greencard Proffered wage:62,379 $

      Greencard Labour was approved in September2012, and the company applied for I140 in premium processing with my pay stub for period August 1 - August 31
      with year to date earnings of 48,000$ and company 2011 tax returns

      We recieved a RFE on I140 for ability to pay for this my company is planning to submit the following docs

      All my paystubs,Bank statements from march to October 2012

      Company Bank statements from July to till date

      with my latest paystub for October ,I have year to date earnings of 69,000$ ( from March to October)


      when calculated from July 2012 ( date Gc labour was filed) to October 2012 my year to date earnings would be only 41,000$

      Would USCIS consider the proferred wages paid from July 2012 or would they consider from March 2012 since I was already working with the company and have the YTD earnings of 69,000$

      Thank you

      Comment


      • #4
        USCIS would look for proof of proferred wages from March 1st 2012. Prorate prevailing wages of $ 62,379 from March until september and check to see if you have been paid equal to more than this amount, if yes, then you are in better shape.

        Comment


        • #5
          For immigration categories that require the Labor Certification application, once the employer has obtained the Labor Certification, the employer can file an I-140 immigrant petition for an alien with the USCIS.

          One purpose of I-140 petition that requires a certified Labor Certification is to establish that the employer has the ability to pay the offered wage stated in the Labor Certification application. The employer must be able to prove its ability to pay the proffered wage at the time the priority date is established, and continuing until the beneficiary employee obtains the lawful permanent residence.

          Q: How to establish the ability to pay the offered wage? http://www.greencardapply.com/i140/i140_faq.htm

          A: AN employer must establish that it had the ability to provide the salary stated on the certified Labor Certification and the I-140 immigrant petition, since the filing date of the Labor Certification application. Establishing how to prove that an employer has the ability to pay has continued to raise concerns, and the USCIS had issued a guidance to its Service Centers to clarify what types of documents are acceptable, and the basic review procedures. The ability to pay can be established by:

          1) the employer actually paid the employee salary equal to or greater than the offered wage, or

          2) the employer's net income was equal to or greater than the offered wage, or

          3) the employer's net current assets were equal to or greater than the offered wage.

          Comment

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