I-140 RFE...Ability to pay...from STATE GOVERNMENT !!!!....Very Interesting..read on.

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Strat

Registered Users (C)
This is an interesting situation. My hushand, received an RFE for I-140 asking for ability to pay. Both of us work for the State of Tennessee, Department of labor and workforce development. Though my I-140 has been approved, my husband received the RFE for his I-140.

Initially, when we got this letter from INS, we provided for all the documents, like the Budget report for all the year requested along with the a letter from the Chief Financial Officer that we have more than 1500 employees working in our Department. Inspite of sending all this documents to them, my husband received another RFE saying 'Notice of Intent to Deny' on the basis of not being able to provide sufficient documents proving the employers (State of Tennessee's ) ability to pay !!!!!

We are not only shocked at the response, but literally laughed our gutts out wondering who is actually processing the documents !!! Do they have any idea whom they are dealing with. They are literally questioning the ability of the State of Tennessee (a non profit organization ...HELLOOOOO ??!!!!!) to pay our salary and asking for the federal tax returns !!!!

We have ofcourse contacted a lawyer who will work with us in this process. But I wanted to know if anyone has ever been in such a situation where the employer is the State Government of US and if they have received such a letter. What is the best way to respond to this RFE ? Is there any specific document that can be given other than the budget report to prove the Governments Ability to Pay !!! (cant believe I am asking this question because it really sounds so ridiculous !!!!!)'

Thanks for your time ! :)
 
Have already looked up the link before. Had done enough ground work of looking up all the threads before submitting the documents. No where could I find anything pertaining to the employer being a "State Government". Its very evident that the person who is checking the documents has either no clue about what hes supposed to do or hes just asking for "Federal Tax Returns" blindly without knowing anything about State Government.

As a matter of fact, even before submitting, my employer had personally called a representative in USCIS and that representative was at loss of words as to how a State Government could receive such a letter. He himself advised us to give the budget report and a letter from Financial Officer which we did and told us that either the person is "over analysing" or must be "new person" who has no clue of what hes asking for !!! And we personally feel that the latter might be very true !!!
 
very interesting indeed!

You are probably right about the officer being 'new'. However, you should consider the following:

1) The officer does have the authority to question the ability to pay - regardless of the size and stature of the company.

2) Since there has been an RFE, I assume the state is paying your husband less than what is mentioned on the LC. This is ok for other entities, but definitely does not sound right for a company affiliated with the DOL to be doing that. (if they are paying you the LC wage, you simply need to send in the W2/paystubs).

3) The letter that the CFO wrote - do you have a copy of that? When it has to do with government agencies, they are VERY picky about what they write. If the letter is not worded in such a way that it promises a permanent position that matches the labor, and promises to pay the LC salary, it will not be acceptable.

I can see that your initial reaction would be to laugh at the officer - it would be mine too. But its always better to cover our rear than to be bitten on it.

good luck!
 
I agree that we have (no choice on that ) to cover our ass in this situation. And thanks for responding....

1. The office does have the ability to question..that is true. So that is the reason why we have sent all the documents that were requested. Now the fact that he is still asking for Federal Tax Returns ( State Government does not file FTR !!) only indicates that he has absolutely no idea what he wants. These documents were also evaluated by an immigration lawyer before sending it. We have not in any way taken it lightly when we received the first RFE.

2. We have sent pay stubs too and no... the state is paying exactly the same amount as mentioned in the LC.

3. If possible, could you kindly give the format of the CFO letter if you do have it with you. Our letter mainly states thats they had more than sufficient funds to provide for his post and that currently hes working on a permanent position and that our department has more than 1500 employees. Ofcourse, we have also explained about our department and his role in the same.

Thanks for your input !
 
you should be fine ..

I have not seen a format of the letter. I remember someone asking for it in UnitedNations thread, but there was no response. I had done a search in the past and did not find it either.

The text in Yates memo only asks for a "statement" from the CFO. I am guessing here, but your case would be strongest if the letter stated that your company currently has (and has had - since the priority date) more than 100 employees, and has maintained the ability to pay $XXXXX all along.

If your husband has been paid the proffered wage since the priority date and you have W2(s) and paystubs to prove that, that's better proof of ability to pay than the CFO's letter.

As far as asking for the federal tax returns, that is standard RFE text. I am sure the officers 'pick' from a set of preformatted RFE letters. It would be too much to expect them to write out a custom RFE letter for each case.

Do you know how many I140 petitions are pending from your organization? What is the percentage of cases they have raised an RFE for?
 
I think I didnt explain clearly before...both of us were contracting with the State of Tennessee (working for another company...but the client was State of Tennessee). So at the time of LC, we were not employees of the State of Tennessee. We became permanent employees beginning Oct of 2003. But our GC was started by the State of Tennessee way back in 2001. So that is the reason why we presented the Budget Reports starting from 2000 which shows allocation of funds and the expenses for each year and also shows the number of employees and tons of other expense information for the Department.

Also, since both our contracting positions was retained and was converted to permanent positions in the same Department, we are thinking of giving the documents (vouchers and billings) that the State paid for our hourly rates to our previous company. Maybe that would show the availability of funds. And since hourly rates was more than the State salaries, it would show that they had more than sufficient funds for our positions (had we been employees then)

We had sent the pay stubs of the time when we actually started working with the state ie from Oct 2003.

We are the only two in our Department of Labor so far who have applied for GC. The Division has never done any kind of processing of GC in the past. For some reason, when my I-140 was being processed, they never asked for the Ability to Pay and my I-140 has been approved.
 
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