TRACKER: 140 RFE - Ability to Pay

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leeeleele

Registered Users (C)
My husband's coworker just got a RFE on her 140 regarding the company's ability to pay. She filed her 140 a little earlier than my husband. I am really worried about that my husband will get same RFE and their 140 might be rejected even after they submitted evidences. I also saw in this forum that quite a few people got RFE -ability to pay on their 140. So here is my little suggestion:

If you have got an RFE on ability to pay, could you please post these:
When RFE?
RFE approved or rejected?
And any specific things you want to share with us (for example, if yours got approved, what was the circumstances and what documents you submitted for the RFE. Same with rejected)

Thank you very much! At this hard time, I wish this tracker can help everyone with similar situations.
 
read UnitedNations thread ..

http://boards.immigrationportal.com/showthread.php?t=137088

there is a tonne of information there. That helped me beat the retrogression - my ability to pay RFE was issued 11/24. If i'd not done ground work based on the thread, I would not have been able to respond to the RFE in time.

Issues to keep in mind: if you get an RFE, you have 90 days to respond, which is long enough to prepare a response that will be acceptable by USCIS (its usually ammended tax returns / audited financial statements / bank account records etc).

However, if the case is denied, you'd have only 30 days to file a MTR, which is usually not enough. That thought prompted me to be proactive and prepare a for responding to an RFE, and it paid off big-time.

Check the criteria for proving ability to pay - size of company (if > 100 - nothing to worry). Profitability (if net profit > total of salaries offered to all employees for whom 140 has been filed) OR W2 wages > LC wages. Any one of the three have to be proved since the priority date. Using W2 wage + Net profit > LC wage is also allowed (Nebraska SC has issued a statement to that effect). See how your petition does with these tests and chart out a plan of action!
 
My husband's situation is a tricky one. Pls HELP!!!

Thank you for your reply. It’s very helpful. My husband's attorney just confirmed that my husband's 140 also got a RFE on ability to pay.

I am a little discouraged as I found out of the four criteria in the thread, maybe only #4 can be used for the RFE response. Here is why. My husband’s situation is a little tricky.

His company is a start-up. They were not doing well in 2001-2003. Made loss in these three years. Their business was still running by cash from investors. Number of employees fluctuated below and above 100. My husband’s W2 wage in 2001-2003 were lower than LC proferred wage ($67,000 versus $70,000). Starting from 3rd quarter in 2004, their company was doing better and finally made profits. And number of employees is now above 100. My husband, along with ~10 other employees (only 10% of the whole company as he heard) finally got salary increase two months ago (end of November 2004), which made his annual salary now (~$73,000) higher than the proferred wage.

So if applying the four criteria:
#1) He may not be able to use the CFO statement as number of employees fluctuated in the last four years
#2) He was not paid the proferred wage
#3) Net income was negative for 2001-2003
#4) Don’t know about his company’s asset/liability situations (It’s kind of weird to me: From accounting perspective, shouldn’t total asset = total liability?)

So my question is:
1) Will INS accept a CFO statement just because his company now has over 100 employees?
2) He ‘s now waiting for 2004 W2 which has the salary increase. But I did some prorateing calculation and found his 2004 W2 wage may still be below $70,000. Will INS accept a statement from the company saying he’s got the new wage that will give him a 2005 W2 wage higher than proferred wage?
3) If net income was negative, can it still be used to compare with wage difference?
4) Have to find out their asset/liability situation

Very worried at this point. Can anyone give us some advice? Thank you!!!
 
leeeleele said:
So my question is:
1) Will INS accept a CFO statement just because his company now has over 100 employees?
2) He ‘s now waiting for 2004 W2 which has the salary increase. But I did some prorateing calculation and found his 2004 W2 wage may still be below $70,000. Will INS accept a statement from the company saying he’s got the new wage that will give him a 2005 W2 wage higher than proferred wage?
3) If net income was negative, can it still be used to compare with wage difference?
4) Have to find out their asset/liability situation

Very worried at this point. Can anyone give us some advice? Thank you!!!
Click to expand...

1) the CFO can still make a statement that the company employs > 100 employees (does not state > 100 employees all the time).
2) 2004 may help as it shows current ability to pay, but they may not be asking for that as the year end just happened. The financial requirement has to be met from the LC PD until today and they will specify which years they need info on.
3) no, as this does not help you.
4) the current net assets will be included in the companies tax returns. If needed they may be able to adjust the tax returns to show a favorable number.

5) I work(ed) for a company who was making losses every year and had no tax returns to show. We used bank statements to show a strong cash position. This may also be used if the current net assets don't show up well (Argue that tax returns just show status at years end, while bank statements show cash on hand all year round).
 
Contact UnitedNations

UnitedNations is very active in this forum, he responds to queries posted within a few minutes 90% of the time. He has also done a lot of research in this area. Use the link I posted in my previous post to write him.

If the difference in salary is $3K, there should be options available cover this. However, do not take my note to mean that it will be easy - my wage difference was lower than 3K, and Unitednations pointed out that there have been denials for as low as $100!!

It also depends on number of issues like priority date, assets, receivables ..
Unitednations should also be able to tell you if being a 100+ company now will suffice.

There have been quite a few cases where bank balances shown have been successful. Unitednations will be able to tell you which how the various service centers treat such responses. Each center has its own characteristic favorable points of view.
 
Thanks everyone!

Your support is really encouraging. By the way, USCIS did ask for my husband's 2004 W2... But after reading all the posts, I think the biggest help will be net current asset. We will be talking to the attorney and the company's CPA for more information.

Thank you!
 
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