Tracker for appeals/MTR

ashvenbuk said:
HI,
I am in a similar situation.I moved an MTR against my denied I140 (EB2----Education issue) which was denied and then applied for an Appeal on 30th Sep 2007.I thought that both(MTR and Appeal) would be taken care in the same application.After my denial of MTR i came to know that unlike the previous forms, the new I290 B form allows you to select either MTR or an Appeal.Now, after my MTR was denied i applied for an APPEAL and got a receipt.It shows that the case is still pending at NSC .Doesnt even show if it is moved to AAO.I applied for another 140 on same labor,this time on EB-3 in Aug 2007.That is also pending.I got my 8th year H1 ext with the same.I got my fresh perm started and now the labor is approved.I want to apply for fresh I-140 with the new labor.Would there be any issues since i have an appeal pending on EB2 and 140 pending in EB-3 with the old labor and i would be applying another I-140 with the new labor.Please share your comments and suggestions.
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The previous 2 140s may be linked, i.e. they may (most likely) ask you to withdraw one before approving the other one. IMO, the new 140 on different LC should be independent.
 
gc_peo said:
My understanding from (yates memo) is that AC21 portability can be used when I-140 is pending and 180days have passed since I-485 was applied. It also suggest that when AC21 portability is used, the officer can not reject the I-140 if he felt that it would be rejected on the grounds of ability to pay from the 1st employer.
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IMO, your understanding of AC21 is not correct. I think AC21 can be used only once 140 is approved.
My question is:

Can AC21 portability can be used when I-140 MTR/appeal is pending and its 180 days past the I-485 applied date?
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No, if that was the case, everyone will get approved.
If yes, then would the I-140 be approved simulatenously with AC21 application? If it is, then would the approved I-140 go to the new employer or the old employer?

Any comments Gurus?
Click to expand...
Apart from "what if"s, What is your real situation?
 
I-140 MTR/appeal, retaining priority date

EricS,

I posted my questions on the 19th of october in the free conference call help by Rajiv. And yes you right, I cannot use AC21 portability while my MTR/appeal is pending and this was confirmed by Rajiv.

Here is my situation:
EB2 labor appled in 2005 and approved
I-140 Premium process: april 2007
I-140 RFE: July 2007 (Reason: Ability to pay)
I-140 Denial: aug 2007 (reason: ability to pay)
I-140 MTR appeal: sept 2007 (in progress)

I-485: applied on July2nd > EAD approved> FP completed

I have no update on the MTR. Except that the USCIS website shows that the application is pending at the Nebraska service Center.

I asked my lawyer if I could file a new I-140 under EB2 using my current LC to retain the priority date, he told be with great confidence and bluntly that it cant be done as per the rules. He is further suggesting me to file a new LC process under perm.

I had many times read in the forum that people in a similar situation apply for a new I-140 and withdraw the pending one when USCIS sends a notice to withdraw one of the two.

Is my lawyer correct about not being able to use my current LC from 2005 to file for a new I-140 while I have an I-140 thats under MTR/appeal?Is there an expiry date from the date of approval of the LC after which it cant be used for a new I-140 filling?
 
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gc_peo said:
EricS,

I posted my questions on the 19th of october in the free conference call help by Rajiv. And yes you right, I cannot use AC21 portability while my MTR/appeal is pending and this was confirmed by Rajiv.

Here is my situation:
EB2 labor appled in 2005 and approved
I-140 Premium process: april 2007
I-140 RFE: July 2007 (Reason: Ability to pay)
I-140 Denial: aug 2007 (reason: ability to pay)
I-140 MTR appeal: sept 2007 (in progress)

I-485: applied on July2nd > EAD approved> FP completed

I have no update on the MTR. Except that the USCIS website shows that the application is pending at the Nebraska service Center.

I asked my lawyer if I could file a new I-140 under EB2 using my current LC to retain the priority date, he told be with great confidence and bluntly that it cant be done as per the rules. He is further suggesting me to file a new LC process under perm.

I had many times read in the forum that people in a similar situation apply for a new I-140 and withdraw the pending one when USCIS sends a notice to withdraw one of the two.

Is my lawyer correct about not being able to use my current LC from 2005 to file for a new I-140 while I have an I-140 thats under MTR/appeal?Is there an expiry date from the date of approval of the LC after which it cant be used for a new I-140 filling?
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There was a proposal to not allow 140 filing on LCs after a certain time limit, like 6 months. I am not sure if that ever became a law or not. Check in this forum elsewhere and you should be able to find it.

Regarding filing another 140 when appeal is pending, others have done so. It is allowed on the basis that if you have some new evidence to overcome the denial (A2P in your case) and you were not able to file it with your MTR/appeal because it was not available at that time. But, I do not understand how you will retain PD by filing a new 140. The PD can be retained after the 140 is approved. Even if you file another 140 and it gets denied, then no use.

How are you planning to overcome the Ability to Pay (A2P)? Do you have sufficient proof to overcome the reason for denial? If so and you have filed it with MTR, then you need to wait for a decision on that. If you do not want to wait and want to file another 140, you can do so. You will have to file some additional documents also that were not in the MTR (as I explained earlier).

If you do not have enough proof to overcome the A2P, then you should definitely file another LC and take care of A2P this time.
 
EricS said:
There was a proposal to not allow 140 filing on LCs after a certain time limit, like 6 months. I am not sure if that ever became a law or not. Check in this forum elsewhere and you should be able to find it.

Regarding filing another 140 when appeal is pending, others have done so. It is allowed on the basis that if you have some new evidence to overcome the denial (A2P in your case) and you were not able to file it with your MTR/appeal because it was not available at that time. But, I do not understand how you will retain PD by filing a new 140. The PD can be retained after the 140 is approved. Even if you file another 140 and it gets denied, then no use.

How are you planning to overcome the Ability to Pay (A2P)? Do you have sufficient proof to overcome the reason for denial? If so and you have filed it with MTR, then you need to wait for a decision on that. If you do not want to wait and want to file another 140, you can do so. You will have to file some additional documents also that were not in the MTR (as I explained earlier).

If you do not have enough proof to overcome the A2P, then you should definitely file another LC and take care of A2P this time.
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A new law came into effect from July 17 2007 that a labor will remain valid for only 6 months from the date of certification. For Older labor certifications which are approved prior to July 17th the clock starts(validity of labor) from July 17th no matter when it was approved.

Like in my case my Original Labor got approved in October of 2006 and with the new law my labor is valid till January 16th 2008(6 months from July 17th).

My Lawyers are going to apply for a second 140 with my original LC sometime in November. Appeal is pending for the 140 denial with substitution Labor.
 
Guys i am in the same boat

140 got rejected on A2P ground ,
MTR files on 10/17

does anyone had any good experience with MTR
how long does it take to get receipt notice for MTR
how long it took for you GC_Ven ?

are you sure that labor will be valid for 6 months beyond July 2007 ?
 
ELFSUNNYSIDEUP said:
Erics,

After finished reading your signature, I found out I have a very similar case like you!!!
Please read my posted here :

http://boards.immigration.com/showthread.php?p=1807915#post1807915

So far I just have company B bank statement to fill my MTR (good enough profit to pay my salary.), will this help??

Please help me out about the detail for how to amend the tax return! I only have 15days left to fill my MTR, please help!!
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I have replied to your thread.
 
Reply to Eric

Thanks, Eric.

How much I got pay is much more than the LC salary. Now, the B company's bank statements (from 04' to 07') shows that they have enough ability to pay for my salary. My pay stubs are from A, but the W-2 forms were issued by B. Do you think that really matter? and also, do you think bank statements will prove that they have A2P?

I did try to send email to unitednation, but his msg box was full. Can you get him contacted?
 
ELFSUNNYSIDEUP said:
Thanks, Eric.

How much I got pay is much more than the LC salary. Now, the B company's bank statements (from 04' to 07') shows that they have enough ability to pay for my salary. My pay stubs are from A, but the W-2 forms were issued by B. Do you think that really matter? and also, do you think bank statements will prove that they have A2P?

I did try to send email to unitednation, but his msg box was full. Can you get him contacted?
Click to expand...

If you got paid more than the LC wage, then you should not have problem with A2P. You do not even need bank statements or anything else. As your W2s are from B, did you submit the W2s or Pay stubs with 140? If not then you need to file MTR with W2. I still don't understand how A can give paychecks and B issues the W2.
 
Mtr

Thanks again for your quick reply, Eric. Your advice is very valuable, and also I don't have so much time left, plesae reply again with my question as following:

Yes, my salary is much more than LC salary, but the reason I got denial is from B's past 3 years tax returns, couldn't show the ability to pay.

Actually, from year 2004 to 2006, I got all pay stubs for all 3 years from B and also 05' and 06' W-2 forms from B. 04's W-2 form are titled as A, but the Employee ID# and address were showed B's. (maybe a mistake from accounting)

As I mentioned earlier, A and B belong to same owner, so since 2007, A's accounting department managed both A and B's finaical issues, that's why the last ten pay stubs I submited for RFE were showd A's name on them.

According to the above problems, I prepared few evidences for MTR, can you give me some suggestions?

1. Banks statement from 2004 to present, all have very healthy finacials
2. Few printed out checks from B's bank account shows that B did pay back the PAYROLLs issued by A, on the other hand, even I holding A's pay stubs, but still withdraw from B's account.
3. My personal 04', 05' and 06's tax returns
4. A couple of pay stubs from 04's showing that I did get pay from B, even the W-2 form shows A.
 
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ELFSUNNYSIDEUP said:
Thanks again for your quick reply, Eric. Your advice is very valuable, and also I don't have so much time left, plesae reply again with my question as following:

Yes, my salary is much more than LC salary, but the reason I got denial is from B's past 3 years tax returns, couldn't show the ability to pay.

Actually, from year 2004 to 2006, I got all pay stubs for all 3 years from B and also 05' and 06' W-2 forms from B. 04's W-2 form are titled as A, but the Employee ID# and address were showed B's. (maybe a mistake from accounting)

As I mentioned earlier, A and B belong to same owner, so since 2007, A's accounting department managed both A and B's finaical issues, that's why the last ten pay stubs I submited for RFE were showd A's name on them.

According to the above problems, I prepared few evidences for MTR, can you give me some suggestions?

1. Banks statement from 2004 to present, all have very healthy finacials
2. Few printed out checks from B's bank account shows that B did pay back the PAYROLLs issued by A, on the other hand, even I holding A's pay stubs, but still withdraw from B's account.
3. My personal 04', 05' and 06's tax returns
4. A couple of pay stubs from 04's showing that I did get pay from B, even the W-2 form shows A.
Click to expand...

This is what I have analyzed so far, provide rest of the info and lets see if makes any sense:

Company A
> name is COMPANYA
> Tax ID is TAXIDA

Company B
> name is COMPANYB
> Tax ID is TAXIDB

As per your 2004 W2 TAXIDA=TAXIDB
So, infact it is just one TAX ID. Then owner is using either name with that ID. Can the employer provide you with the documentation that in 2005, they changed name from COMPANYA to COMPANYB? If yes, then you need to argue that it is the sme compamy as the tax ID is the same, so paid by A or B, doesn't matter. Confusing enough, not yet. Now they are again using name COMPANYA. Do they have another tax ID now for A?

What USCIS wants to see is that
> who sponsered your GC? I think B.
> Did that company (B) pay you equal or more than salary mentioned in LC? I think this is where the confusion is. So it is not good to confuse USCIS, they will just assume that A and B are different companies, B sponsored you and did not pay you enough, hence the denial.

If you want your MTR to successed, demonstrate that B paid you the salary. If not, B should have enough profit as I explained earlier.

You do not need to provide exact figures.
> Your LC wage is $ XX,000.00
> 2004
Your W2 has from COMPANYA and TAXIDB. As per the W2, you got paid $XX,000.00

> 2005
Your W2 has from COMPANYB and TAXIDB. As per the W2, you got paid $XX,000.00

> 2006
Your W2 has from COMPANYB and TAXIDB. As per the W2, you got paid $XX,000.00

Now in 2007, they have again reverted to name A, not sure why they are doing so. May be they are trying to save the taxes etc. anyway, not our concern.

As far the list of documents that you have collected, I can't say what will help until I understand the relation between name of company A and B and the tax IDs.
 
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MTR help

Thanks Eric. In order to make you better understand my situation, I answered your questions one by one here:

Company A
> name is COMPANYA
> Tax ID is TAXIDA

Company B
> name is COMPANYB
> Tax ID is TAXIDB

My response: Yes, two companies have different names and TaxIDs
-----------------------------------------------------------------
As per your 2004 W2 TAXIDA=TAXIDB
So, infact it is just one TAX ID. Then owner is using either name with that ID. Can the employer provide you with the documentation that in 2005, they changed name from COMPANYA to COMPANYB? If yes, then you need to argue that it is the sme compamy as the tax ID is the same, so paid by A or B, doesn't matter. Confusing enough, not yet.

My response: COMPANYA doesn't change name to COMPANYB, they always have their own names. COMPANYA issued both companies' W-2 forms, for different companies use different name and tax IDs, that why I said maybe it was a mistake caused on my 04' W-2 form.
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Now they are again using name COMPANYA. Do they have another tax ID now for A?

My response: Yes, COMPANYA has TAXIDA which is different as B.
-------------------------------------------------------------------------

What USCIS wants to see is that
> who sponsered your GC? I think B.

My resonse: Yes.
------------------------------------------------------------------------
> Did that company (B) pay you equal or more than salary mentioned in LC? I think this is where the confusion is. So it is not good to confuse USCIS, they will just assume that A and B are different companies, B sponsored you and did not pay you enough, hence the denial.

My response: COMPANYB paid me for three years and more than the LC salary. But B's tax returns don't show they have enough ability to pay me. That's why I got denial.
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If you want your MTR to successed, demonstrate that B paid you the salary. If not, B should have enough profit as I explained earlier.

My response: I have W-2 forms and my personal tax returns for three years. And also, the 04', 05', and 06' COMPANYB's bank statements for each month.
All those documents can demonstrate COMPANYB has paid me and enough money to pay. Do you think that's enough? even COMPANYB's tax returns shows not?
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You do not need to provide exact figures.
> Your LC wage is $ XX,000.00
> 2004
Your W2 has from COMPANYA and TAXIDB. As per the W2, you got paid $XX,000.00

My response: Yes.
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> 2005
Your W2 has from COMPANYB and TAXIDB. As per the W2, you got paid $XX,000.00

My response: Yes.
---------------------------------------------------------------------
> 2006
Your W2 has from COMPANYB and TAXIDB. As per the W2, you got paid $XX,000.00

My response: Yes.
---------------------------------------------------------------------
Now in 2007, they have again reverted to name A, not sure why they are doing so. May be they are trying to save the taxes etc. anyway, not our concern.

My response: From Jan, 2007, COMPANYA stared issued pay stubs to me,but I will provide last four COMPANYB's bank checks to show that B paid A back. Do you think that will demonstrate still B paying me?
--------------------------------------------------------------------
As far the list of documents that you have collected, I can't say what will help until I understand the relation between name of company A and B and the tax IDs.

My response: I will go to see my lawyer and bring all the additional evidences which I listed earlier to him tomorrow, would you mind give me a quick reply before I see him? Thank you so much!!!
 
ELFSUNNYSIDEUP said:
Thanks Eric. In order to make you better understand my situation, I answered your questions one by one here:

Company A
> name is COMPANYA
> Tax ID is TAXIDA

Company B
> name is COMPANYB
> Tax ID is TAXIDB

My response: Yes, two companies have different names and TaxIDs
-----------------------------------------------------------------
As per your 2004 W2 TAXIDA=TAXIDB
So, infact it is just one TAX ID. Then owner is using either name with that ID. Can the employer provide you with the documentation that in 2005, they changed name from COMPANYA to COMPANYB? If yes, then you need to argue that it is the sme compamy as the tax ID is the same, so paid by A or B, doesn't matter. Confusing enough, not yet.

My response: COMPANYA doesn't change name to COMPANYB, they always have their own names. COMPANYA issued both companies' W-2 forms, for different companies use different name and tax IDs, that why I said maybe it was a mistake caused on my 04' W-2 form.
---------------------------------------------------------------------
Now they are again using name COMPANYA. Do they have another tax ID now for A?

My response: Yes, COMPANYA has TAXIDA which is different as B.
-------------------------------------------------------------------------

What USCIS wants to see is that
> who sponsered your GC? I think B.

My resonse: Yes.
------------------------------------------------------------------------
> Did that company (B) pay you equal or more than salary mentioned in LC? I think this is where the confusion is. So it is not good to confuse USCIS, they will just assume that A and B are different companies, B sponsored you and did not pay you enough, hence the denial.

My response: COMPANYB paid me for three years and more than the LC salary. But B's tax returns don't show they have enough ability to pay me. That's why I got denial.
---------------------------------------------------------------------
If you want your MTR to successed, demonstrate that B paid you the salary. If not, B should have enough profit as I explained earlier.

My response: I have W-2 forms and my personal tax returns for three years. And also, the 04', 05', and 06' COMPANYB's bank statements for each month.
All those documents can demonstrate COMPANYB has paid me and enough money to pay. Do you think that's enough? even COMPANYB's tax returns shows not?
---------------------------------------------------------------------
You do not need to provide exact figures.
> Your LC wage is $ XX,000.00
> 2004
Your W2 has from COMPANYA and TAXIDB. As per the W2, you got paid $XX,000.00

My response: Yes.
---------------------------------------------------------------------
> 2005
Your W2 has from COMPANYB and TAXIDB. As per the W2, you got paid $XX,000.00

My response: Yes.
---------------------------------------------------------------------
> 2006
Your W2 has from COMPANYB and TAXIDB. As per the W2, you got paid $XX,000.00

My response: Yes.
---------------------------------------------------------------------
Now in 2007, they have again reverted to name A, not sure why they are doing so. May be they are trying to save the taxes etc. anyway, not our concern.

My response: From Jan, 2007, COMPANYA stared issued pay stubs to me,but I will provide last four COMPANYB's bank checks to show that B paid A back. Do you think that will demonstrate still B paying me?
--------------------------------------------------------------------
As far the list of documents that you have collected, I can't say what will help until I understand the relation between name of company A and B and the tax IDs.

My response: I will go to see my lawyer and bring all the additional evidences which I listed earlier to him tomorrow, would you mind give me a quick reply before I see him? Thank you so much!!!
Click to expand...


There are 2 main issues that I see:
> 2004 W2 has A's anme on it but B's Tax Id. So get it corrected and mention in your MTR that it was a mistake. Corrected W2 is attached.
> A is paying your paychecks. Then B is paying A, still it does not change the fact that you are being paid by A and not B. What should happen is that if B does not have funds at the time of your payroll, A should loan the amount to B, then B pays you. Then B can return money to A when they have. For 2007, B has not paid you anything, even though they paid some money to A and BTW that money is equal to your paycheck... doesn't matter.

If you cannot get 2004 W2 corrected, then you need to show B had A2P to you in 2004. For 2005 and 2006, you already have W2>LC wage, so you are good there. Again for 2007, B need to have that much net profit.


1. Banks statement from 2004 to present, all have very healthy finacials
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If the balance stays there and keeps growing, then it will help. Not a definitive way to show A2P.
2. Few printed out checks from B's bank account shows that B did pay back the PAYROLLs issued by A,
Click to expand...
IMO, will not help.
on the other hand, even I holding A's pay stubs, but still withdraw from B's account.
Click to expand...
I still don't understand that how can you withdraw money from Microsoft bank account when you have Oracle paycheck.
3. My personal 04', 05' and 06's tax returns
Click to expand...
Will help.
4. A couple of pay stubs from 04's showing that I did get pay from B, even the W-2 form shows A.
Click to expand...
You need to get that corrected and include explanation. IMO, USCIS is not going to buy this argument. What is says on W2 is what it is.

Best of luck! I wish your case didn't have this extra twist of A v/s B, then it would have not been denied.
 
Thanks Erics for your quick reply. I will bring your opinions to my lawyer see what he will say.

Now, I have another question for you.
For the worse case scenario, if I get denial for MTR, do you think I still can re-file my I-140 by using my old LC? My LC approved on Nov, 2006, and I still have two years for H-1B visa.
 
ELFSUNNYSIDEUP said:
Thanks Erics for your quick reply. I will bring your opinions to my lawyer see what he will say.

Now, I have another question for you.
For the worse case scenario, if I get denial for MTR, do you think I still can re-file my I-140 by using my old LC? My LC approved on Nov, 2006, and I still have two years for H-1B visa.
Click to expand...

It may take long time to get a decision on MTR. By that time, your 180 days of LC validity may be over. As your LC is old, your 180 days will start from July 17th 2007(is that the correct date?). If you get a decision before 180 day, you can file new 140 if you want. You can also file new 140 while MTR is pending, provided you have some evidence to overcome A2P that was not available at the time of filing the MTR.

My suggestion, as a backup, file a new LC. Before you do that, decide onething: Which company is going to sponsor you, A or B. Then ask them to pay you from the same company consistently. In case your current MTR is not accepted, then this new LC will come handy to extend H1 and also to file new 140.

BTW, which company hold your H1, A or B?
 
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