Company's financial, AC21

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Shrikanth

Registered Users (C)
Does anybody have an information about if one changes an employer based on AC21, a financial statement from the new employer is always required or EVL used to be enough ?

Thanks in advance,

Shrikanth
 
I am in the same boat

I am also in same situation.

I have EVL, annual report, payslips. waiting for W2 so that I can send the docs to my attorney so that he can respond to my RFE. my case is AC-21 too. I dont know if I would get the financial statement from my employer.
 
appears to be so ...

I recently got an RFE ... for EVL, two years W-2s and tax returns, and last two months pay stubs.
 
It looks like that the I-140 needs to be repeated for the new employer. Is this a new practice or always used to be the case for AC21s?
Then I do not understand what is I140 or AC21 for if it needs to be repeated anyway :) . These too seems to be the same thing...
 
Can you clarify?

What do you mean by I-140 has to be repeated for AC-21?

If your I-140 is already approved ... and I-485 is pending 180+ days ... then AC-21 applies (in a similar job classification) ... where is this repeating thing coming from?
 
Shaf said:
What do you mean by I-140 has to be repeated for AC-21?

If your I-140 is already approved ... and I-485 is pending 180+ days ... then AC-21 applies (in a similar job classification) ... where is this repeating thing coming from?
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As far as know, the law does not require the ability to pay criteria from the new employer. So in this sense there is no need to repeat things.
However, as we can see from the aravind741's RFE, the new employer also has to prove the ability to pay and provide the same documents that the first one had to provide in the I140 process. So in the practice it looks to me the same thing. Actually the whole thing looks very comic to me because as far as I know a GC is for a future job and I just do not understand why employer B should be able to pay for something that employer A applied for and promised Somehow the practice seems to play the role of the law or they just does not follow their own law (or just not able to do that for some reason).
 
unitednations said:
one of the conditions for 140 to get approved is that the sponsoring employer has ability to pay the proffered wage. although the 140 has been approved, this condition must be there until you obtain permanent residency. USCIS can come back and ask for ability to pay since the 140 gets approved. They generally don't do this if you are still with the same 140 employer.

however, since ability to pay is supposed to be there until you obtain permanent residency and you have switched employers, they may ask for documents to establish that the end employer has ability to pay the proffered wage. I haven't seen one denial when the end employer had to show financial documents.
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Thanks for the clarification.
It would more rational if the ability to pay game would be played just when they are in a position to make a decision instead of requiring it continuosly for years (e.g. last month if Peoplesoft supported a guy he was a good guy. This week some of those might not be approved, just because of the known reasons and the guy is not reponsible for those reasons at all...). Law should be law instead of lottery...
 
unitednations said:
just to show you how much of a big issue it is. I have a 90 page thread going on this in the 140 vermont forum.
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So what is your experience: are they satisified with an EVL letter and some paychecks in the everyday practice or there is a need to play the new company's ability to pay circus too in each and every case ?
 
aravind741 said:
i got my rfe and the documents shows the list of things.
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It would appear to me that if you can't get any documentation about the company's financial situation, your paystubs (cancelled checks) showing you are getting the salary at or above your original LC would suffice.
 
recently there have been many discussions on this. No where in the the 140 or 485 approvals guidance do u have tha company's ability to pay clause. If they have promised u a salary and are meeting it that should suffice. Last year same time there were many such cases and then there was a guidance from HQ saying that if the tax returns or assets etc matched the salary offered that should suffice. Then the officers started out pulling all cases from a comany and tried to match if the comany's tax returns/assests was enought to apy all the employees. There was a recent article in immigration-law.com where in april 2005 they are going to make some amendments and only require that the business sposnoring a candidate is a bona fide US entity. So i am sure that there can be no denials based on this if your have been compensated. This will hold no water in front of the immigration appeal council/body. So provide EVL, as many paystubs u can , w2's to cover current employer if available and also if possible provide the employee payroll docs as proof of ability to pay.

Cheers

Tanjar
 
I think this is the article that tanjar is talking about:


2/18/2004: I-140 Petition, "Ability to Pay" Requirement, and USCIS Plan

* Lately, a host of I-140 immigrant petitions have been denied on the issue of petitioning employer's financial ability to pay the proffered wage. The requirement of "financial ability to pay" is derived from the interpretation of the immigration statutues and there is no such specific language in the statute itself.
* In implementing the financial ability to pay requirement, there have been a number of confusions, inconsistencies, and arbitrariness until the so-caled "Yates Memo" was released no too long ago to clarify the standards. Now, the USCIS rule-making agenda reflects that USCIS is planning to amend 8 CFR 204.5(g)(2) to eliminate specific reference to ability to pay and replacing it with the statutory requirement that petitioner establish its bona fides as a U.S. employer through specifically cited initial evidence. This rule provides clarification and focus that reflects the statutory requirement that the petitioning employer establish its bona fides as a U.S. employer and the viability of the proffered job.
* The plan is to enact this regulation in April 2005. The USCIS can change the plan as it often does, but we support this regulatory amendment to come better terms with the statutory language and the legislative intent. Before the legacy INS and the current USCIS started toughening the financial ability to pay requirement, the legacy INS implemented the statute and regulation somewhat liberally and close to the terms of the statutory language. For instance, the reality of the business reflects that the businesses constantly go through "ups and downs" in revenue and income over the years. One cannot judge the viability of a business strictly based on the net income figures of the businesses in a given year. There may be hundreds of thousands of businesses that have survived for years and years, sometimes over 10 years, and are experiencing downturn of the revenue because of the poor economy. It is indeed absurd that these businesses are judged as "not viable" because of couple of years of business slowdowns! We urge the USCIS to amend the regulation as drafted and implement the statutes more close to the language of the statutes.
 
unitednations said:
Until they change the regulation, it is what it is. I wouldn't hold out hope that this is going to change. there hasn't been any immigration friendly rule come out in the last two to three years.
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Actually, Bill Yates wrote a memo for I-140 ajudicators on this subject around 2-3 months ago that had one huge benefit - if the alien is already being paid the proferred wage, then that fact alone is evidence of ability to pay.

For thos employers who don't lowball their H-1B non-immigrants, it's a huge benefit.
 
The article which Srikanth provided was the one i was referring to. There is no clear guidance or yardstick for ability to pay. As i mentioned the adjudicators take all petitions from a orgnanization and then proved that the comany doesnt have the ability to pay even though the company have been paying proferred wages. In many cases where the company is not of substantial size they do have a lot of money flowing in thru VC's. Technically though they are not making profits they have been in business for a couple of years wthile paying all their employees. I am sure the ability to pay issue has toned down after the last year guidance from HQ. I ultimately beleive the attorneys representing the cases make a big difference in such cases.

Cheers

Tanjar
 
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