I-140, I-485 denied. Need your advices, urgent please.

V

vermontgc

Registered Users (C)
hi Last week my 140 denied, because of employer ability to pay.
Here are the details
concurrent filed 140,485, applied 06/23/2003
140 RFE 04/20/04
response received for rfe 05/10/04
140 , 485 denied 07/13/04

Let me explain the situation..
There was an RFE on 140, to submit the tax returns of employer for year 2002. Mentioned no appeal on 485 denied notice. On 140 mentioned you can appeal in 30 days time peroid.
 
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Date of filing

I believe, your date of filing is Dec 23 2002. I derived this from the response from BCIS "December 23,2002, the date of filing and continuing to the present".

If this is true, I believe, you need to prove that the employer either paid the salry from Dec 23 2002 to till date which is equivalent to proffered wage. If the paid salary is less than the proffered wage, then you should show, the assets, profits... etc.

Thanks,
DWD123
 
hi dwd123, United nations,
thanks for your responses. more details are..
The date Dec 23 2002 is the date they filed for labor .
I joined in April 2002 in present company.
Thanks.
 
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Excellent analysis

Just follow Unitednations analysis and react to case. You may get through the denial.

Thanks,
dwd123
 
One couldn't explain/analyze the I-140 requirements/eligibilities better

Good job UNITEDNATIONS...
 
United Nations-- very good analysis

What about 2003 and 2004. There is a difference of 23,000 for 2003 based on 78,000 proferred wage and actually paid which is 55,000.


USCIS also looks for company's ability from the date of labor filing to the day I140 gets approved. Still the picture for 2003 and 2004 is not clear to show that company had assets excess of proferred wage.

Company's stocks, bonds, line of credit and if the owner is single owner of the company then his personal I140 would help get over the hurdle. In my case it was lot worse than this case but my new attorney was smart enough to get better relevant documents from employer. Also depends on attorney's covering letter. A novice attorney in our company's case got two cases denied, so I changed attorney to an experienced firm. After four weeks of RFE respone I140 got approved.

For AAO adjudication it could be around 6 months.
 
Depreciation

I asked this question last time but got no reply. After talking to my attorney and searching on the web it looks like depreciation can also be added back to Company's net income to prove ability to pay.

Depreciation on tax returns is a "non cash deduction" with actual cash remaining for use by the Company. If I am wrong please advise. Thanks!
 
unitednations said:
Thanks guys.

I keep seeing these types of RFE's, denials and in my mind "ability to pay" issues should be easy to overcome. The education issues are a little tougher to overcome.

The biggest problem for people working at these small/medium size companies is having scrupulous owners. There is no way that these types of companies should be running at losses.

What happens is that these owner/managed businesses have their wife, kids, relatives on payroll who aren't doing anything. This is called "income attribution". Since there relatives don't have any income any wages they receive are taxed at a lower rate then the incremental amount the owner would pay. Also, the biggest problem with tax evasion is running through inappropriate expenses that are personal . Since owners want to pay less taxes they start buying personal things and running them through the company (televisions, vacations, meals, vehicles, etc.). This is one of the reasons why owners are not willing to open their books and records to outside lawyers/cpa's because they are afraid all the skeletons will come out.

In the mean time the people going for greencards are all getting screwed because of this.
Click to expand...

Great Analysis United Nations,
Well I have somewhat similar situation and by seeing all these denials I am getting worried.
Let me explain this:
My Company is Single Man Owned Company. My Labor was filed on 2nd Sept. 2003 and was cleared in Dec 2, 2003.
My I-140 and I-485 was concurrently filed in March 2004. I got My EAD, AP FP not done yet.
After talking to my Lawyer I found out that company has not provided any information about the tax return papers.
My Salary at the time of Labor was $55,000 and company has given a letter to USCIS that they will pay me $65,000 as proffered wage (requirement from USCIS for my designation). Right now I am getting $57,000 and I am sure my lawyer will increase my salary up to $65,000. But in my last 3 yrs W2 form my salary is $55,000 that is $10,000 less than proffered wages.
My worry is that how USCIS will react to this and what decision they will make on my case. Even though my company is doing real well. Getting projects worth millions of dollars. And continuously hiring people. From the time I was hired , my company hired like 20-30 more employees. And half of these are on H1-B.
My lawyer says its ok. He has done cases where actual salary is less than the proffered wage.
Please help me to understand my situation.
Thanks.
 
Thank you very much united nations. You did great analysis.
Thank you for each one participating.
Even these attorney's, don't know these things. They always demands for money for whatever they are doing work. They can handle at the time of RFE issued. They never told me the RFE what it's. whenver I asks they tells,"we will take care of it. don't worry. we handled so many cases this type of RFE's " but finally it's denied.

As you mentioned one of the point, I am just providing the info.
I have the paystub in my hand, for the pay period 12/23/2002 to 1/5/2003.
paid as sallary $1923.08 + expenses $380. if we are not including the expeses get paid.
For 2002 analysis, for the period 12/23/2002 to 12/31/2002
14 days pay id 1923.08, per day: 1923.08/14= 137.36. , Per year= 137.36*365 = $50137.44 which is croseed the proffered sallary, metioned in
Thanks.
 
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unitednations said:
http://uscis.gov/graphics/lawsregs/admindec3/index.htm
I'm attaching a link to administrative decisions. Once you get there pick "b5" and "b6". You will see that most of the administrative decisions belong to "ability to pay". You will see many of the reasons that people are trying to overcome the original decision and what USCIS has to say about it.

Off the top of my head, it is true what your attorney is saying that depreciation is a non cash item and is not deductible for tax returns and must be added back to net income. However, tax returns for companies with less than $5 million in revenue can be prepared on a cash basis and there would be no depreciation involved.

However, if the tax return is prepared on a GAAP basis then there is a reconciliation performed to bridge the difference between GAAP financial statements and taxable income. Essentially, certain items that are deductible for GAAP financial statements are not deductible for tax returns or they are deductible at different amounts (depreciation is one of the items that are deductible at different amounts - however, one has a choice whether they want to take that deduction or not).

If the companies financial statements (GAAP basis) show enough net income tto overcome difference between proferred/actual wage then you will be ok. It won't matter what the taxable income is. Bottom line is that there is differences between how taxable income is calculated and GAAp income is calculated. I believe as long as one of them meet the criteria then you will be o.k.
Click to expand...

Hi United Nations:

Thanks fo the reply. My Company has under $5 Million in revenue. It is a retail business. We have many trucks and vans that are used for business. Hence the depreciation figures are in thousands.
 
hi Unitednations and all
is there any impacts from present denied I-140, onto my new I140 ?

If I go in the same Vermont center, is new case is going to be completely new preocess. or extention of old one etc ?
Iwent thru the couple of cases on Appeal decision, the results are not at all postive to appeal.

One more thing, for one file number in appeal section, the result shows on June 18 2003, this appeal is dismissed.
If I check the same file number on "online satus of immigration site" saying "we received this file I140 on Feb 4th 2004, it takes 60 to 90 days to process this case etc."

In what situation the same file number, once denied on appeal and present status showing filed on "Feb 4th 2004". Is the new file of I-140 based on same labor? why the processing times is showing only 60 to 90 days ? Is it because of already have the decisoion before .. ?

Please advice.

Thanks.
 
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I-140, I-485 denied

I think you should talk to the accountant. He can see the denial notice and tell you what to do. Why I am saying this because friend of mine has the same situation. He appeal with few more documents and he got the approval.When you appeal you must send the extra documents, beside you have sent already to USCIS.

Thanks,
gogi274
 
re:

Guys.
my 140 has been approved and i am in 485 stage now. i am being paid only $45k as taxable salary and rest as per diem .could my 485 get rejected if the salary mentioned on my labor is say 75k.
pls advise.
regards
 
Hi UnitedNations,

Its great analisys.How about in case of labor substitution?

Do we have to prove that company is able to pay the amount mentioned in the labor at the time of labor filing for labor substitution also?

My Case: Labor wage is 80K and applied for labor june 2001 and approved Nov 2003.

Using this labor as a substitution,filed for 140/485 in 3 June 2004(EAD/AP approved 23 july 2004) and joined this company 12 April 2004 and getting paid more than 80K. And my attorney forgot to attatch my paystubs in my filing , he did attach a letter from my company with $25 Millions of turn over and 500,000 as profit last year.

Do you forsee any RFE?

Thanks for your help
 
help needed....

Seniors,
Got a question regarding my I-140 & I-485 ? (labour filed in December' 2001)

My W2 has 50% lesser amount for the year of 2002 as I was out of country for 4 months because of family issues back at home. will there be any issues in I-140 and I-485 approval

All other W2's have 10K plus than my Labour application declared salary.

I have filed for 140 & 485 on Feb 26th 2004. Got my EAD and AP approved on May20 2004.

In case any RFE's trigger what and how should I respond to my RFE

Senior members like United Nations please respond
Thanks in advance
 
For Unitednations and other experts, Please comment

Well my lawyer said depreciation can be added back to the net income. You are right some admin. decisions have gone against adding depreciation but there are some that have gone for it. I am attaching three of them with this post in which the USCIS/AAU is allowing addition of depreciation to net income.

MY CASE: Priority date is in 2001. 2001 & 2002 Company tax returns were submitted along with my 2003 W2 and 2004 pay stubs. 2001 bank statements were also submitted.

As far my case goes the Company 2001 taxable income plus depreciation exceeds my offered wage and the bank statements for 2001 show an average monthly opening and closing balance of an amount twice my yearly wage.

2002 taxable income is greater than offered wage;

2003 W-2 amount is greater than offered wage;

2004 pay stubs equals offered wage.

So I am struggling with 2001 with the depreciation issue. I hope it gets approved. Keeping my fingers crossed.
 
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Will I 140 be approved?

I filed my I140 . I got a RFE and they again asked to send the W2's of 2002 and 2003. My W2 for both year is 27,000$ each as I went for vacations or was on bench. On my labour salary stated is 70,000$.
My company's revenue for 2002 and 2003 was 7.5 Million $ each year. Both year it was in Deloitte Technology Fast 500 company.They have 300 employees.
Now does it mean that I am safe from my I 140 being rejected for ability to pay?

Thanks
 
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