I 140 Denied, now what ??

[sonupv]

Hi Everybody,

I got a notice today from USCIS (California Center) which states that my I-485 is now denied because the underlying I-140 (EB2) has been denied.

My lawyer had received an RFE for I-140 which wanted us to file the documents to prove the employer's ability to pay. I didn't see that RFE letter, but according to my lawyer USCIS wanted to see the employer's tax return since 2000.

The employer is a legitimate company and was willing to provide the tax returns since 2000, but the lawyer insisted that by law the immigration dept. can't ask for tax returns from so long ago, as I had joined the employer only in 2003. So despite my requests to send all the asked documents he just sent the tax returns for 2003 and 2004.

I can't say whether that resulted in the denial of I- 140 but that was the story so far.

Mine was an EB2 case and I had filed the I485 before retrogression came into effect for EB2 in October. I have already received the EAD and Advance parole, but I suppose they are deemed invalid too.

I would appreciate any advice about what my options are now ??

If an MTR is filed for the I-140, what would happen to my I-485 (and EAD and AP) applications ?

Thanks in advance for your help.

Too bad, I checked my mail before leaving to watch the harry potter movie.

Sonu

 

[Jim Mills]

Hi Everybody,

I got a notice today from USCIS (California Center) which states that my I-485 is now denied because the underlying I-140 (EB2) has been denied.

My lawyer had received an RFE for I-140 which wanted us to file the documents to prove the employer's ability to pay. I didn't see that RFE letter, but according to my lawyer USCIS wanted to see the employer's tax return since 2000.

The employer is a legitimate company and was willing to provide the tax returns since 2000, but the lawyer insisted that by law the immigration dept. can't ask for tax returns from so long ago, as I had joined the employer only in 2003. So despite my requests to send all the asked documents he just sent the tax returns for 2003 and 2004.

I can't say whether that resulted in the denial of I- 140 but that was the story so far.

Mine was an EB2 case and I had filed the I485 before retrogression came into effect for EB2 in October. I have already received the EAD and Advance parole, but I suppose they are deemed invalid too.

I would appreciate any advice about what my options are now ??

If an MTR is filed for the I-140, what would happen to my I-485 (and EAD and AP) applications ?

Thanks in advance for your help.

Too bad, I checked my mail before leaving to watch the harry potter movie.

Sonu

Ability to pay must be shown from establishment of Priority Date. See 8 C.F.R. 204.5(g)(2) which states "Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. In a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service."