I-140 Ability to Pay Issue...

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LoveIndiaLikeUS

Registered Users (C)
Folks,

At present due to downturn in economy, most companies do not make profit and they make losses. Did any one got RFE's regarding the company's financial position in this tough market? My company as a group is making losses and am wondering whether I will any problem in I-140 approved.

Your feedback is appreciated?

Thanks,
LoveIndiaLikeUS
 
It depends. If your company is Enron or Global Crossing it would seem unlikely that INS would challenge the company' ability to pay the offered wage. However, if your company has 10 employees and is earning $500,000 per year, it seems very likely that INS would challenge the company's ability to pay the offered wage.
 
Hi Jim:

Thanks for your reply! At present, My company has more than 300 employees which is making 9Million Dollars Gross Profit (Gross Income), but making 8 Million Dollas Net Loss (Net Income). In this scenario, what will happen to the "Company's Ability to Pay" issue? Will INS deny I-140 based on the Net Loss? OR Will INS make decision based on Gross Profit?

Thanks,
Sam
 
I don't understand the facts. You stated that your "company has more than 300 employees which is making 9Million Dollars Gross Profit (Gross Income), but making 8 Million Dollas Net Loss (Net Income). " Are you saying that your company has 300 employees and is only making $9,000,000 gross and is losing $8,000,000? That would mean that the company has a total operating cost of $17,000,000 per year. Wiith 300 employees that means a total operating average of $56,666.67 per employee, which is extremely low since it would include benefits, tax matches, and all fixed expenses including rent and insurance. If I were an INS examiner, I'd seriously question it.
 
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Hello Jim
Would you think a small company <5 employees , but with financial ability (cash in bank account) to pay wages for 2+ years could sucessfully sponsor a GC for an employee who was previously sucessfully sponsored for L-1A (executive) ??
This new company (European company subsidiary) is making little sales right now and having loses, but it has money enought to keep in business since prospects are very good.
 
It's probably possible. Nothing really can be said for certain without a thorough review of all the documentation. Some cases are borderline and for them the only way to know is to give it a try.
 
Hi,

I was recently RFEd (Nov) for my I140. My company has around 10-15 FTE employees and revenues of around 2-3 M FY 2001 and probably around 0.5M in the red for current year. Even though the last few months have been tough and we have been deep in the red, all that INS wanted were the latest audited Tax statement, which were for FY 2001. My I140 got approved in Dec. So bottom-line, there would have to be some serious financial issues for the past couple of years them to doubt your company's ability to pay.
 
Thank Jim...

Hi Jim :

Thanks for your reply! Here is my situation. My company alone has 300 employees and is making profit. However my company reports to Parent company which has got 6 different companies and they report loss. My company will not send their own financial statement to INS but will send only as a Group. I am stuck here. The 9 Million Gross Profit and 8 Million Net Loss (Net Income) is for the group and I dont know how many employees are there in the whole group?

Do you know how will INS look in the above scenario? I am somewhat concerned about this strange situation and hope you will provide valuable inputs.

Thanks in advance for your help!

Regards,
Sam
 
Question to Jim & Others....

Folks,

Thanks for your help! As per the INS I-140 form, the law is such that if any company has more than 100 employees, a "CERTIFICATION OF ABILITY TO PAY" (Signed by CFO) is enough and they dont specify that the company has to produce Audited Financial Statement.

Can you guys/gals throw some insight on the above issue? Did the INS send any RFE to anyone asking the company to produce the financial statement even if their employee strength is more than 100 persons?

Jim, Can you provide your valuable insights into the above issue?

Thanks,
LoveIndiaLikeUS
 
I am currently working for a company with less than 25 employees, however my company is not ready to divulge financial details. I have recently filed for I140. From last 4 years (1999-2002) my salary is above LC salary. Is it possible to use past W2's to answer any possible "Ability to Pay" questions?
 
LoveIndiaLikeUS:

I've seen INS ask for tax returns and audited financial statements from companys with more than 100 employees. I don't know what would have happened if I told them they were not entitled to it since I just sent the documents along with a response saying that they were stupid to ask for this but here it is.

raj574:

You can try to use whatever you like but I don't think INS will accept it as conclusive evidence. I don't know what your company thinks they are hiding, INS and the IRS are both part of the federal government. Tax returns are no huge secret. I've seen this before though and it is going to be a serious problem.
 
Jim,
If a company is not making profit and having loses, but beliveing in the market contraced a lown and would send the INS beside the tax return, a bank statement showing $$ enought to support operations for over one year, would that satisfy the INS request for evidence of ability to pay wages??
Many thanks in advance
 
Thanks to Jim and Everyone....

Folks,

Thanks to everyone who have contributed usefully to this issue and special thanks to Jim for his fast reply! I researched a lot in this particular issue and have come to a conclusion that in downturn economy, INS is not too particular about the company's financial position. I can give a proof where lot of immigrants from Cisco, Lucent, Motorola, McLeod USA and other telecom companies which are hit hard (and the companies are losing heavily and they dont make any profit) are being granted greencard where their I-140 is approved.

In my case, my company records revenue based on fee (similar to Priceline where they record only the fee/commission from the sale of the ticket) is less than 3 million dollars (Revenue) eventhough they have 250 employees. However, the Gross Income (ie Total Consulting Fees or Sales) is $23 Million and the the company's Net Income (ie Profit or Loss) is Loss $800,000 (ie. 0.8 Million).

My company is going to report only the Gross Income as '3 Million' as it is a Fee-based company and the Loss is '$0.8 Million'. Jim, Can you throw some insight on this issue. If company reports the Gross Income as '23 Million' and Loss as '0.8 Million', will INS approve the 'Company's Ability to Pay'?

Thanks,
LoveIndiaLikeUS

Disclaimer : This is my personal opinion and please use your own discretion before making any conclusion or decision.
 
INS does not use a computer to spit out I-140 based on numbers. It really depends on you, the case, your lawyer, the IIO and his/her's mood at the moment. You can pull your hair out crunching numbers, but the anwser is still the one Jim already gives: Probably.

Bigger company, higher profit, higher title and salary always give you more assurance. So if you can, try find another job. If not, hang-in there and hope for the best. If you don't have confident in your lawyer, try change it sooner than later. That coulnd make some real difference.
 
As I said before, big companies, such as the ones that you mention, probably will not be questioned over their ability to pay a $100K salary (for example) and only need a statement from their CFO in most cases. Small companies that are showing red ink will have increasing difficulty as the red ink gets greater and the company gets smaller. At what point this will lead to a denial is up to the discretion of the immigration officer and therefore may vary from officer to officer and case to case. I can identify likely problem cases and make a good attempt at getting the case approved anyway. There is no way that I can say for sure that a particular case will or will not encounter problems or whether the case will or will not be approved unless the situation is very extreme (such as a very large corporation with very high profits or a very small corporation that is losing employees and showing very high red ink).
 
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