Urgent help needed! Can I use same labor after I-140 Denied?

E

ELFSUNNYSIDEUP

Registered Users (C)
Hello everyone,

Please help me out here, thanks in advance.

I got I-140(EB-3) RFE denied on Oct 12, 2007, reason is the employer's ability to pay.

My case is kind of complicated: Company A and Company B are belong to same owner, B is A's branch with different name, address, and EIN#. I work for B, and all the employees at B get pay from A. A manages all the finacial documents. I got paycheck from A, but got W-2 form under B's name.
Company B is the Petitioner for my GC application.

Now, Even A has very good net profit, USCIS only consider B's ability to pay which does not establish enough net incomes to pay me (but the truth is A is one paying me), that's why I got denied. My lawyer is working on MTR for me, but he only will submit Company B's bank statements. I don't think it will work. Anyone can help me, and give me some suggestion?

And also, can I still use my old LC to re-file I-140?, is there any expiration date for my LC? or I have to apply a new LC as my lawyer told me?

Bunch of Thanks.
Online Waiting......
 
My Opinion, Not Legal Advice

Ability to pay is a complicated issue. The burden of proof is on the employer to show that the company can afford to pay you. However, I don't think just bank statements are enough to prove this either. Your lawyer should put together a strong and convincing case using financial documents (which can include bank statements, annual reports, profit loss statements, etc.), case laws, letter from ceo or someone that is familiar with the financials of the company, details of how you are paid, your pay stubs perhaps, letter from CPA, and so on, to present to them. Otherwise, I think they will just deny it again. Try going through case laws on the uscis website. You'll see what I mean. Also, if you can, may be you should contact another EXPERIENCED lawyer to handle your case. Also, there is a lot of information on this forum pertaining to ability to pay issues - dig through it.

I heard that labor certificates, as of mid july this year, have an expiration date of 180 days after approval. I'm not positive though. You can use the same labor to apply for another i-140 if necessary (as long as it has not expired) as well.

Good luck!
 
Really appreciate for your comment, zz2006.

Actually I did talk to my employer about the CPA, but I been told that since I only have 30 days to respond for the MTR, I don't have enough time to do the verification from CPA.

So that means I have to use Company A to apply the PERM and start all over again?

I'm so depress right now, waiting for 4 yrs LC to get approval and now 140 got Denial. Life is just unfair......
 
You are so kind, zz2006.

I don't want to give up, however, I seem have no choice but start over.

Long way to go........

Thanks again, zz2006.
 
I-140 MTR, can I file new I-140 with same LC?

hello,

I am in the same boat too. I-140 rejected on ability to pay grounds. MTR filed month back. Don' know if I can file a new I-140 with the same LC. My lc was approved in 2005. Gurus, any comments?
 
elfsunnysideup

i have the same case as yours ,

labor approved after 5 years, 140 got denied on ability to pay
lawyer filed MTR on oct 20th

they have submited everthing financial statements, letter from ceo, cpa, tax returns, pay stubs

however issue is there is difference in prevailing wage vs offered wages which is = 30k

and the immigration officer is saying that this difference is not reflected in net income.
 
I posted the reply, then I came back to read it and it is not there. Don't know what happend. anyway, I am writing it again.

I can understand your position, I will try to help as much as I can.
Amending the tax return is difficult in the sense that you need to make sure what numbers to put in there. It should match one of the tests
> Net profit
> or net current assets - net current liabilities
should be more than the difference between LC wage and actual wage.

Once you/employer/CPA/lawyer figure it out, then filing is easy. Visit the local IRS office, take a acknowledgement stamp from IRS on a photocopy of amended return and file with your MTR.

Your situation with this company A and B is also not good. I am not a CPA, so I may be wrong, but the way I look at it:
B is filing your GC. Say your LC salary is 80 K. Now how much are they paying you... ZERO. The fact that A and B belong to same owner, does not matter, these are different entities. So in order to show Ability to Pay (A2P), B need to show a net profit of 80K. I understand it is not your fault, but looks like a very difficult situation to overcome. Then again, you say you got W2 from B, that means B is paying you. How much is the difference btwn W2 and LC wage for these years? It is really not clear who is paying you.

When you say B has good profit on bank statement to cover your salary, do you mean they have 80 K balance at the end of the year. Moreover, it is not easy to use bank statements for A2P.

Do you have contact info for UN, if not search in this forum and try to contact him. If he agrees to take your case, he may suggest some good wayout.
 
Last edited by a moderator:
You mean to say after 17th July 2007 one can not file new I-140 once again If one I-140 is pending and another one is in appeal ?

I am sure one can file I-140 as much he wants, if you have some addidtional evidence to prove it that rejection was not correct.

Ram
(Joan327@hotmail.com)
 
LC approved more than 180 days.

My LC approved more than 180 days already, so I think I have no chance to fill another 140 by using my old LC, is that correct? The only way for me is fill a MTR and during this period, apply a fresh LABOR by using PERM, right??

Thanks in advance!
 
Ramakrishna58 said:
You mean to say after 17th July 2007 one can not file new I-140 once again If one I-140 is pending and another one is in appeal ?

I am sure one can file I-140 as much he wants, if you have some addidtional evidence to prove it that rejection was not correct.

Ram
(Joan327@hotmail.com)
Click to expand...

On the same LC, you should not file multiple I-140's. USCIS system catches this and puts the subsequent I-140 filing under hold till the first I-140 is cleared. So you are wasting time on this. You will need to withdraw previously filed I-140 before filing subsequent I-140.
 
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