RFE on I 485. Please advice!

N

nyctechie

Registered Users (C)
My employer filed my GC under EB1 category. I-140 and I-485 was filed almost concurrenty and I-140 was approved
after 8 months. Now CIS sent an RFE (I-485) to the company lawyer asking for a document from my previous employer (basically that requires my previous employer to provide me with a signed letter). Now the owner of my previous company (who happend to be a good friend of mine) is not comfortable giving me that letter as
he thinks it could put him into a bigger trouble incase INS sends another query. And the reason of his concern
is he never gave me a W2. I worked for him in 2004 for 6 months before transferring my h1b to my current employer.
During that time I was doing some consulting through his company and he was giving me paychecks after witholding
the taxes. However he never used a third party payroll company (like ADP or paychecks) for that purpose and I really
didn't have a thing called paystub. So I had to generate paystubs on my own (basically using excel) based on the
amount he was withholding and net payment. I used 2 such paystubs to transfer my H1b my current employer also.
Now everything would have been fine, had he filed the taxes and given me a W2 for that year but he didn't and didn't tell me about that till Jan, 2005 when I asked for w2. At that point I also didn't report that to INS as it
could put him into trouble. Now my question is
1. What should I do if INS sends another query asking for w2 from that particular company (in year 2004)?
Can I just tell them that I couldn't file it because I never received a W2.
Will this anyway affect the I-485 decision? what would be the best way to handle the situation?

Thanks in advance.
 
nyctechie said:
My employer filed my GC under EB1 category. I-140 and I-485 was filed almost concurrenty and I-140 was approved
after 8 months. Now CIS sent an RFE (I-485) to the company lawyer asking for a document from my previous employer (basically that requires my previous employer to provide me with a signed letter). Now the owner of my previous company (who happend to be a good friend of mine) is not comfortable giving me that letter as
he thinks it could put him into a bigger trouble incase INS sends another query. And the reason of his concern
is he never gave me a W2. I worked for him in 2004 for 6 months before transferring my h1b to my current employer.
During that time I was doing some consulting through his company and he was giving me paychecks after witholding
the taxes. However he never used a third party payroll company (like ADP or paychecks) for that purpose and I really
didn't have a thing called paystub. So I had to generate paystubs on my own (basically using excel) based on the
amount he was withholding and net payment. I used 2 such paystubs to transfer my H1b my current employer also.
Now everything would have been fine, had he filed the taxes and given me a W2 for that year but he didn't and didn't tell me about that till Jan, 2005 when I asked for w2. At that point I also didn't report that to INS as it
could put him into trouble. Now my question is
1. What should I do if INS sends another query asking for w2 from that particular company (in year 2004)?
Can I just tell them that I couldn't file it because I never received a W2.
Will this anyway affect the I-485 decision? what would be the best way to handle the situation?

Thanks in advance.
Click to expand...

you need to see a good lawyer
 
Thanks Ginnu! Although the law firm (through my company) that is handling my case is pretty good but I don't want to tell them all these as my company's HR will know and they may not like all these complications. I'm going to consult with a different lawyer soon. However do you think that I could get away with the fact that I never received a w2? I hope that this situation will never arise though. I know that my company already provided my 2005 w2 along with the application. Can the really send a 2nd RFE asking for my 2004 w2 from that particular company? Are you aware of any such cases? Thanks.
 
Not to be mean, but you have indulged in illegal activities.
Bad karma just catching up with you.

nyctechie said:
Thanks Ginnu! Although the law firm (through my company) that is handling my case is pretty good but I don't want to tell them all these as my company's HR will know and they may not like all these complications. I'm going to consult with a different lawyer soon. However do you think that I could get away with the fact that I never received a w2? I hope that this situation will never arise though. I know that my company already provided my 2005 w2 along with the application. Can the really send a 2nd RFE asking for my 2004 w2 from that particular company? Are you aware of any such cases? Thanks.
Click to expand...
 
mogambo, what do you mean by illegal activities? I haven't received w2 and couldn't file the tax. May be I should have
forced my company to work on that but nothing was intentional in any way on my part.
 
I believe it is illegal for the company not to give you w2 if you got paid from them but you might want to check with a lawyer. In any case, your friend it is the one who did not give you the w2 and it was his legal liability. He should have report that to the IRS
 
Thanks techbuyer77. The only thing that I'm worried about are the paystubs that I created (based on the paychecks he gave me) and used them to transfer my H1b to my current employer. I have copies of paychecks from him that matches the amount in those paystubs. When I realized that I am not going to get W2, it was too late i.e I already used those paychecks to transfer my H1b. However when I created those paystubs I had an understanding with him that he was going to give me a w2 and he was deducting that amount from my paycheck.
My only concern is that, I hope CIS will not consider those paystubs as fake documents (and hold me responsible) as the company never paid
any tax to the IRS. When I created them, my intention was honest and I had an understanding that the compnay would pay the taxes. let me know your take. I'm going to see a lawyer soon though.
 
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nyctechie said:
Thanks techbuyer77. The only thing that I'm worried about are the paystubs that I created (based on the paychecks he gave me) and used them to transfer my H1b to my current employer. I have copies of paychecks from him that matches the amount in those paystubs. When I realized that I am not going to get W2, it was too late i.e I already used those paychecks to transfer my H1b. However when I created those paystubs I had an understanding with him that he was going to give me a w2 and he was deducting that amount from my paycheck.
My only concern is that, I hope CIS will not consider those paystubs as fake documents (and hold me responsible) as the company never paid
that tax to IRS. When I created them, my intention was honest and I had an understanding that the compnay would pay the taxes. let me know your take. I'm going to see a lawyer soon though.
Click to expand...

he was supposed to give you W-2. it seems he did not pay tax on the income that he got through you and that is illegal and IRS can screw him. you need to see a good lawyer
 
I agree with ginnu, you need to see a lawyer. I have been told COMPANIES must give w2 and if they dont the IRS will penalize them really bad.
 
You definitely need to response to the RFE and have your lawyer create a draft. Simply cannot ignore because if they don't receive the response to the RFE, case can be closed and your petition will be denied. You can ask your friend to simply write a confirmation of employment letter.

Good Luck!!
 
Honest advice

You may not like this but....
Be truthful in immigration matters. Don't "look out" for or "break your head" worrying about protecting your friend. As I see it, he does not care a damn about you, and is no friend. If he was, he wouldn't have put you in such a spot in the first place.
Consult a lawyer. If the lawyer asks you to take some legal course to correct your mistake, then DO SO EVEN IF IT PUTS YOUR FRIEND (so called) IN AN UNCOMFORTABLE POSITION.
Do not blink your eyelid and think about doing so even for a second, just DO IT.
 
Thanks everyone for your suggestions. Well CIS didn't ask for a W2 yet from that company. They just asked for my legal status before joining his company. As a matter of fact, CIS took almost 8 month to process my H1b (I was in F1). So during that time my status was waiting and my friend already mentioned that in that letter. CIS didn't seem to be concerned about my employment period in their RFE. So I hope that they won't come back with a 2nd RFE asking for W2. But if that happens, I'll have to do what I have to do.
 
Did you filed your tax returns?

Hi
You mentioned in your post that because you didn't received your W2 you didn't file your tax returns. Well that is another big problem for you as now not only USCIS but IRS will also come looking you.:rolleyes:
Legal thing to do now (that is if you want to) talk to good lawyer for immigration, talk to CPA and generate the W2 based on paystubs (0 sorry..you dont have those too..):cool:
well best of luck...only thing you can do now talk to good lawyer and pray that he will come up with something.:( :confused:
Thanks
 
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