thanks guys.
Here is a little more details about Mani's case.
His case was a straight denial, no RFE.
When his company sent in his 140, they included the tax returns but not his w2's. Therefore, uscis just looked at the net income and saw it wasn't sufficient to pay the full proffered wage and denied it. If there was any case that should have received an RFE, this was the one.
When his case was denied, the denial letter went to the old companies address and he never received it. Lucky for him, the message changed on his 140 message stating that the mail was returned and undeliverable. If the message hadn't changed then he would not have known his application was denied since uscis doesn't update for denials.
His company didn't go through a lawyer in the original 140. He contacted a lawyer at the end of december and was barely able to file the 290b, in the form he requested for 30 days to send in a brief. His lawyer knew her limitations and told him to get a cpa letter for ability to pay. This is when he contacted me.
I analyzed the companies tax returns and his w2's. The combination of net income and amounts paid to him in 2002 and 2003 showed ability to pay. However, 2001 was going to be a little short. He had just started with the employer in March 2001 and didn't received full year of wages.
There was two strategies. One was to use proration in the first year and the other was to argue that the tax returns were prepared on a cash basis and didn't include receivables.
For proration, I gave excerpts from six different AAO decisions that showed ability to pay only needed to be shown for amounts due to the beneficiary from priority date. Therefore, I did two calculations for 2001. One which showed how much he would have had to be paid from hire date if he received proffered wage until the end of the year and then compared it to how much he actually got paid. I calculated the difference and then showed how there was enough net income to overcome the difference.
The second calculation was showing amounts due to him just from priority date and not hire date. I then calculated how much he was paid from priority date and calculated the difference and then compared it to net income.
I also beat the proration like a dead horse. Also, used the logic of why uscis would ask for a full year's worth of wage and gave an example that if uscis wants full proffered wage for each year and now how much was to be paid to the person from priority date then they are holding the company to a higher standard. Example, I gave was if priority date was December 31, 2001 and person got 485 approved on January 1, 2003 then uscis would be looking for three years worth of salary when all that was needed to be paid was 367 days worth of salary.
Now not wanting to put all our eggs in one basket, I wanted to also show the receivables that his company was due as at 12/31/01 and not included on the balance sheet schedule L because the tax returns were prepared on a cash basis. I told his company owner that I needed the invoices to establish that the service was performed prior to 12/31/01 and then the bank statements in january and february to establish that they were collected in the next fiscal year. Every time I talked to the owner he said he would send it but he never did. Mani, told me that the reason he wasn't sending it is becuase he didnt' have any receivables. I t old Mani that this would be impossible that all consulting companies would have receivables because you do the work first and then bill later.
As time was running short, I tried a different angle with the employer. I told him that if we could get a letter from a vendor that stated how much was due to his company as at 12/31/01 for services performed prior to this date and that it was paid in 2002 that it could suffice. We did get that letter and I explained the cash versus accrual issue in my letter and then explained that there was a letter from xx company confirming the amount. I explained that this letter is similar to an audit confirmation which auditors use in verifying receivables as part of an audit and is the best source of evidence as it is independent and credible and verifiable.
Based on some other cases that have received subsequent approval, either argument may have worked on it's own.
