Here is the news article published in www.immigration-law.com It's a good news for lot of people working for small companies.
Updated 07/17/2002: Alien's W-2 and Proof of Employer's Ability to Pay in Green Card Proceedings
The economic downturn has definitely affected the financial picture of the U.S. employers, particularly small companies. In I-140 immigrant worker petitions, the Service Centers have been growingly demanding the proof of employer's financial ability to pay. The U.S. employers and their immigration lawyers have been struggling to deal with this issue and a number of their cases have been denied.
One of the arguments the U.S. employers have been advancing in dealing with the Service Centers was that the alien was currently "employed and paid salary." However, some adjudicators have denied despite such evidence if they saw poor financial picture for the company either in business tax returns or financial statement.
The INS HQ says "no more!" It confirmed to the AILA in a liaison meeting that the alien's W-2 with the employer should be enough to prove the financial ability to pay the salary for the green card proceeding and reminded the AILA that should any ignorant adjudicator argues otherwise, the employers should telll the officer that the INS HQ said that W-2 is a good enough evidence.
Isn't it a beauty?
First, the w-2 must reflect the full wage required on the LC to be useful here. Second, my reading of the liason meeting is nowhere near this complete a victory. The summary posted on the AILA website said that in “some” situations submission of W-2 forms confirming that beneficiary has been paid the wage offered will resolve the issue of ability to pay.
I have a few questions about the I 140 and determination of ability to pay:
Considering that the market downturn has generally resulted in:
1. lower billing rates
2. more bench time (meaning no pay)
One consequence of which smaller firms are not able to pay as much as mentioned the Labor Certification. Secondly, if one were to try and use the W2, it would not be anywhere close to the salary supposed to be paid (as a result of # 2 - no pay )
What are the avenues to convince the Adjudicating officer to approve I 140?
If the company is no longer willing or able to pay the salary as stated on the approved Labor Certification it is not possible to process an I-140 on the basis of that LC. The company would need to start over and get another LC which reflected a lower salary that the company was willing to pay.