unitednations said:
Although conceptually, one doesn't need to send in W2's, USCIS was rejecting 140's straight outright without RFE if it showed the company didn't have enough profits or net current assets for each year from priority date for the full proffered wage.
I don't disagree that W-2s and tax returns can be helpful in proving ability to pay. My contention is merely that W-2s and tax returns are not required initial evidence, and therefore should not be submitted automatically.
For an I-140, if the alien is already receiving the LC wage or the company has over 100 employees, then recent paystubs or the CFO letter are far easier, and automatically meet the ability to pay requirement. Based on recent memoranda, USCIS ajudicators cannot inquire further on ability to pay if either requirement is met.
Lawyers and myself have seen so many RFE's, denials where the proactive sending in of W2 would have prevented these rfe's or denials that they have become more thorough in trying to prevent these RFE's by requesting this type of information from prospective applicants.
That's correct, but three things to keep in mind.
First, the RFE requirements are changing. Recent memoranda from William Yates have instructed ajudicators that if the initial evidence is sufficient, that they should not use RFEs to go on fishing expeditions. You're seeing fewer RFEs, and less of the boilerplate "EVL and three years' W-2s" that we were getting 1 or 2 years ago.
Second, there's no reason to be proactive on everything. Does everyone submit wedding pictures, shared utility bills, etc. to prove a bona fide marriage without prompting? Of course not - they submit the marriage certificate and then let USCIS decide if they want more or not. If we submitted every single piece of information we possibly could to head off an RFE, we'd end up with a 20lb package.
Finally, and this is most important: the more you give USCIS, the more opportunities they have to dig around. Send in all your W-2s, and maybe there's an employer there that the ajudicator cannot pull up an I-129 for. Maybe you worked on OPT and there's no record. At that point you've gone from an RFE situation to potentially an Intent to Deny (if the period in question is >180 days). Maybe you were not well paid at one point; now you call into question ability to pay again if you're not using the "current LC wage" or ">100 employee" strategy.
The point is that lots of folks get approved without ever being asked for tax returns or W-2s. I never had to submit a W-2, and my tax return was asked for at the interview and placed into the file completely unread.
Submission of tax records should be carefuly considered based on their ability to help or hurt your case. To submit them automatically when USCIS doesn't ask for them is rarely a sound strategy.
