got rfe on ability to pay for I 140....HELP...

[mateja123]

Hello Folks,
I got an rfe on my I 140 appl the other day. The rfe is about the ability to pay.
I was asked to provide the following, my w2 s for 2004 and 2005, my last paystub, company's 2005 income tax return, and the company's 941 and state UC forms for the last two quarter.
My main problem is the prevailing wage is 60 k a year in my LC, however I never made more than 30k a year ever since I joined the company. My w2s and paystub would show that. Also I was told by the company that the return for 2005 has not been filed yet. And the company had net losses for the last three years.
what should i do? any suggestions? my lawyer said not submitting the company's return would look bad.
p.s my LC was filed in Dec 2005 and approved in May 2006.

 

[braniand]

Most important didn't your attorney look into the whole situation before you filed? Apparently he is to be blamed for some things. Anyway, there are 3 accepted ways to prove ability to pay:
1. Net income = or > offered wage
2. Net assets => offered wage
3. You being paid more than offered wage from priority date which for you is Dec, 2005.

As I see you cannot do 1 and 3. Your only chance is number 2. And yes, you have to submit tax return.

Another option to consider depending on your situation is if company has more than 100 employees, then submit tax return, but also letter from CFO.

And if all fails, the only option you will have is:
- show extension filed for the tax return
- state that for 2005 only 1 months must be taken into consideration
- show substantial cash flow in bank accounts of the company
- prove that company had difficulties but now has a lot of revenue, and expects to do great in 2006 (if this is relevant)

This last option is shooting in the darkness, the evidence presented is discretionary, and they may not accept it. However, this is your last chance.

Good luck!

PS. Unless you filed concurrently, and you can join a new employer later, you may have another option. Or drop it all (if you still have time on your H1B), find new employer with good fin. history, and start from scratch. With PERM nowadays, you should be with an approved I-140 within 6 months from start of advertising to I-140 approval by using Premium Processing. It is not that bad of an option!