bad news, need help

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utakecare

Registered Users (C)
i got 140 rejected yesterday 1.5 months after RFE, the reason is "the firm does not have payability".
i am working @ a tiny firm (only boss and me). the market was not good for several years, so the firm does not perform well. the end of last year, the boss opened another LLC but leave the book of the old one open for me. although the earning of both firms add up together is over the salary listed on the application. but i still get rejected.
the boss really want to help me on getting this, so he is thinking to use state senator or whoever to help. he wants to argue that i am important to the firm and the firm won't run without me. i do not know how long it will take for appeal. i do not think the firm can provide any other documents to show its assets. the only think they can do is to argue on the old documents. how much do you think i could win with those help(i mean the senator & boss's arguement)?
shall i really wait? the longer i wait, the fewer time left for the 2nd chance. i almost up 3 years of h-1b.
what i should do? any suggestions?
it is my first time to post on this forum.
 
utakecare said:
i got 140 rejected yesterday 1.5 months after RFE, the reason is "the firm does not have payability".
i am working @ a tiny firm (only boss and me). the market was not good for several years, so the firm does not perform well. the end of last year, the boss opened another LLC but leave the book of the old one open for me. although the earning of both firms add up together is over the salary listed on the application. but i still get rejected.
the boss really want to help me on getting this, so he is thinking to use state senator or whoever to help. he wants to argue that i am important to the firm and the firm won't run without me. i do not know how long it will take for appeal. i do not think the firm can provide any other documents to show its assets. the only think they can do is to argue on the old documents. how much do you think i could win with those help(i mean the senator & boss's arguement)?
shall i really wait? the longer i wait, the fewer time left for the 2nd chance. i almost up 3 years of h-1b.
what i should do? any suggestions?
it is my first time to post on this forum.
Click to expand...


The company has to meet ability-pay criteria at priority date (when your LC is filed). And your employer is virtually gone. It's very unlikely your employer will be successful to open the rejected case. I would recommand you to transfer your H1 to a bigger firm that does not have ability-to-pay problem and try to get GC sponsorship from them.
 
thanks Pralay. But if the firm need to meet ability-pay criteria at priority date, then how come I got my LC approved? does that mean my firm met the criteria at that time?
what do you mean that the firm is virtually gone? the old firm is still there, it is just 2 firms are doing biz at the same time under my boss's name and although i am paid through the old account, but the money could be from the new one. do you mean even this, still "gone"?

tearing
 
utakecare said:
thanks Pralay. But if the firm need to meet ability-pay criteria at priority date, then how come I got my LC approved? does that mean my firm met the criteria at that time?
Click to expand...

Ability to pay issue is reviewed in I-140 stage. That's the very reason your I-140 was rejected. LC approval is not a factor here.


utakecare said:
what do you mean that the firm is virtually gone? the old firm is still there, it is just 2 firms are doing biz at the same time under my boss's name and although i am paid through the old account, but the money could be from the new one. do you mean even this, still "gone"?
Click to expand...

Well, from your posting I got the impression that your boss opened a new LLC. New LLC is independent from old LLC (and even they have a separate accounts). Basically, they are separate firms (except only common factor is the owner of the firms). You are the only employee in old LLC. In this scenario, just being the only employee of the firm, it will very difficult to reopen your I-140. I would advise you to talk an immigration lawyer.
 
Pralay,
i did talk with my lawyer this afternoon. although i asked how much percentage of possibility to get the case reopen, he just ignored my question. he told me if we argue, the points will be:
1, i have been working at this firm for 3 years, so, it is not some assuming future employment, he keeps paying me
2, although both of them are llc, it is still kind of personal firm. it "should" be fine to use personal asset to back the firm up. he said he is gonna look for some cases, if he can find, a good support for the case. but if not, ;-(((
3, if my boss asked senator to write letters to mention how much i mean to the firm, this might affect them to make the final decision. but might not.
i really have no idea if i should appeal
do you have any idea how long that will take?
 
Read this May 2004 memo regarding ability-to-pay issue:

http://www.mnllp.com/GOVCISabtopay2004may4.pdf


utakecare said:
Pralay,
i did talk with my lawyer this afternoon. although i asked how much percentage of possibility to get the case reopen, he just ignored my question. he told me if we argue, the points will be:
1, i have been working at this firm for 3 years, so, it is not some assuming future employment, he keeps paying me
2, although both of them are llc, it is still kind of personal firm. it "should" be fine to use personal asset to back the firm up. he said he is gonna look for some cases, if he can find, a good support for the case. but if not, ;-(((
3, if my boss asked senator to write letters to mention how much i mean to the firm, this might affect them to make the final decision. but might not.
i really have no idea if i should appeal
do you have any idea how long that will take?
Click to expand...
 
thanks a lot for ur info.
i decided not to appeal. it is so hard to give up. I just hope those officer can understand ppl like me, well educated(i got master), stayed in right kind of firm, it is just the field(architecture) which does not pay well, the market(00-04) which gave troubles to so many firms and ppl especially to architecture firms. all those make me stay in the firm for 3 years and lost the case. i need to start all over.
anyway, all those complains cannot change anything. I prayed, I teared...

good luck on your case or life! thx for the help
 
utakecare said:
thanks a lot for ur info.
i decided not to appeal. it is so hard to give up. I just hope those officer can understand ppl like me, well educated(i got master), stayed in right kind of firm, it is just the field(architecture) which does not pay well, the market(00-04) which gave troubles to so many firms and ppl especially to architecture firms. all those make me stay in the firm for 3 years and lost the case. i need to start all over.
anyway, all those complains cannot change anything. I prayed, I teared...

good luck on your case or life! thx for the help
Click to expand...

In general it's very difficult to get I-40 approved from such a small company. In last two years USCIS has become more strict about ability-to-pay issue. You should have talked to immigration attorney before to discuss about the possiblity of your case. That way you would not have to wait 3 years for this decision. You could have pursue alternate route. Anyway, you should try to start a new process with bigger firm. As you have master degree, you can pursue in EB2 (advance degree category). Hopefully it won't take that long.
 
you just never know. when I joined the firm, there were about 8 ppl and we were working on some big project. but afterthat, it shrinked little by little. finally I am the only one left. It is so typical for architectural firms to be small. almost more than 70% firms are less than 20 ppl. It is not that easy to find big one and some are not doing projects that you like. anyway, Now I am going to move.
I guess they think we are "begging" to stay in the US. it is complicated. To me, it is just like pursuing a degree to testify that I have the ability to be accepted by this country. anyway, I can always go back to China where is going to be the center of next century. no offence
 
utakecare said:
you just never know. when I joined the firm, there were about 8 ppl and we were working on some big project. but afterthat, it shrinked little by little. finally I am the only one left. It is so typical for architectural firms to be small. almost more than 70% firms are less than 20 ppl. It is not that easy to find big one and some are not doing projects that you like. anyway, Now I am going to move.
I guess they think we are "begging" to stay in the US. it is complicated. To me, it is just like pursuing a degree to testify that I have the ability to be accepted by this country. anyway, I can always go back to China where is going to be the center of next century. no offence
Click to expand...
=============

Hi,

I was exactly in the same position as you are right now. My Boss was very good, things were bad and My I140 got rejected. We filed an Appeal, but my Boss was kind enough to advice me to change the company. Luckily for me I did get into a larger company and right now I am waiting for my I485 approval.

Going back to my old Appeal , after year, my case was tranferred back from Washington DC Appeal Office back to the Vermont Center where I had appplied my prvious GC from and Vermont Center has sent another RFE. No one is going to repsond to that one as its no longer required, but my personal feeling is they are not going ot approve even if we respond to the RFE. Cases like us are gone cases and its waste fo money , time as well as mental agony.

Good Luck !!!

I know I am not helping your case or giving you any positive feedback, but wanted to let you know where I stand since I was in the same boat as you are. Just me and my boss as employees in the company. Books were bad, though my employer was paying me salary more than was was on the labor.
 
Start looking for another job in parallel to your efforts to reopen this case. With PERM process, labor will not take more than a month or two with a new company. If you have good relations with your current employer, which it seems you do, he should be able to continue your green card process even if you work for another employer. My 2 cents.
 
NSC -EB2

I-140/485/EAD/AP RD: 7/20/05

I-140 LUD: 7/26/05(self)
AP LUD: 09/30/05 (self,RFE photos received)
EAD LUD: 09/27/05 (self,RFE photos received)

Bio metric: code 3- 10/02/2005 (me & wife)

I-485 LUD: 10/4/05 (self)
I-485 LUD: 10/4/05 (wife)

AP LUD: 09/14/05 (wife, approved)
EAD LUD: 09/21/05 (wife, approved)

11/07/05 - calles USCIS and started enqurity on I140 and it
takes one month to get the feedback)


Any one knows why delay on my I140?


Thank a lot
 
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