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05/14/2004: California Service Center Concurrent Adjudication Pilot Initiation and Warning Against Abuse
We reported earlier that the California Service Center was launching I-140/I-485 concurrent adjudication pilot program for the concurrent I-140/I-485 filing cases inasmuch as it is non-National Interest Waiver case and filed after certain date. Qualified cases were supposed to be adjudicated in less than 90 days.
Apparently, CSC is concerned at this time that those who have already filed concurrent I-140/I-485 cases or I-140 petition alone may withdraw the pending cases to refile a concurrent I-140/I-485 case to take advantage of the pilot program.
AILA reports that CSC will not take such withdrawn-refiling cases qualified for the pilot program and will not adjudicate such cases concurrently. It appears, though, that such decision may raise a legal question of arbitraniness in administration of adjudication function. It may also raise the issue of "equal" protection and fairness. The agency may create a "class" without permissible legal justification or constitutional basis just as seen in the "Francis" decision. We'll see.
05/14/2004: USCIS View on I-140 and Financial Ability to Pay
On May 5, 2004, we reported the USCIS memo on RFE and denials. This memo is stirring quite a controversity in the immigration lawyers community. However, when it comes to the bright-line standards for proof of financial ability pay, this memorandum gives employers a good guidance. According to the memo, when one of the following three conditions are met, USCIS should not deny I-140 on the financial ability to pay issue:
(1) Net Income: The petitioner's net income is equal to or greater than the proffered wage. Or
(2) Net Current Assets: The petitioner's net current assets are equal to or greater than the proffered wage. Or
(3) Employment of the Beneficiary Paying the Proffered Wage Salary: The Petitioner is currently employing the beneficiary at the rate of proffered wage.
Accordingly, the companies whose financial picture shows minus(-) income are qualified to file I-140 petition if the alien beneficiry currently working on H-1B and paid the wage which is shown in the labor certification application by submitting W-2 and/or State Employer Quarterly Returns. If it cannot establish the financial ability through the net income or salary paid to the alien beneficiary, then employer will have to use the net current assets to overcome the problem inasmuch as the employer can demonstrate ownership of the assets.
Considering the recent trend of the Service Centers denying en masse I-140 petitions on financial ability to pay issue, this memo at least gives a bright-line test for the issue of threshold.
We reported earlier that the California Service Center was launching I-140/I-485 concurrent adjudication pilot program for the concurrent I-140/I-485 filing cases inasmuch as it is non-National Interest Waiver case and filed after certain date. Qualified cases were supposed to be adjudicated in less than 90 days.
Apparently, CSC is concerned at this time that those who have already filed concurrent I-140/I-485 cases or I-140 petition alone may withdraw the pending cases to refile a concurrent I-140/I-485 case to take advantage of the pilot program.
AILA reports that CSC will not take such withdrawn-refiling cases qualified for the pilot program and will not adjudicate such cases concurrently. It appears, though, that such decision may raise a legal question of arbitraniness in administration of adjudication function. It may also raise the issue of "equal" protection and fairness. The agency may create a "class" without permissible legal justification or constitutional basis just as seen in the "Francis" decision. We'll see.
05/14/2004: USCIS View on I-140 and Financial Ability to Pay
On May 5, 2004, we reported the USCIS memo on RFE and denials. This memo is stirring quite a controversity in the immigration lawyers community. However, when it comes to the bright-line standards for proof of financial ability pay, this memorandum gives employers a good guidance. According to the memo, when one of the following three conditions are met, USCIS should not deny I-140 on the financial ability to pay issue:
(1) Net Income: The petitioner's net income is equal to or greater than the proffered wage. Or
(2) Net Current Assets: The petitioner's net current assets are equal to or greater than the proffered wage. Or
(3) Employment of the Beneficiary Paying the Proffered Wage Salary: The Petitioner is currently employing the beneficiary at the rate of proffered wage.
Accordingly, the companies whose financial picture shows minus(-) income are qualified to file I-140 petition if the alien beneficiry currently working on H-1B and paid the wage which is shown in the labor certification application by submitting W-2 and/or State Employer Quarterly Returns. If it cannot establish the financial ability through the net income or salary paid to the alien beneficiary, then employer will have to use the net current assets to overcome the problem inasmuch as the employer can demonstrate ownership of the assets.
Considering the recent trend of the Service Centers denying en masse I-140 petitions on financial ability to pay issue, this memo at least gives a bright-line test for the issue of threshold.