W2/Ability To Pay/Ability To Work

[assur]

Question 1:
Criteria: A real issue in consulting Environment.
-An "Employer" has Sound Financial Status
-But "Employee" Does NOT work to get that Salary as mentioned on the LC
-At the End of Year, W2 shows less because He/She worked say for 3-months (for any unavoidable reasons)
- USCIS would raise any issue/RFE?
- What are the tests in this case?

 

[rajeevnair32]

Question 1:
Criteria: A real issue in consulting Environment.
-An "Employer" has Sound Financial Status
-But "Employee" Does NOT work to get that Salary as mentioned on the LC
-At the End of Year, W2 shows less because He/She worked say for 3-months (for any unavoidable reasons)
- USCIS would raise any issue/RFE?
- What are the tests in this case?

your question is very broad in scope.

If you mean your employer is big company with more than 100 employees, then according to the most recent Yates memo, you are fine - because legally, the stated proffered wage is required to be paid only after the GC is approved. If your employer has means to prove that it is "sound", then you should fine on "ability to pay".

The Yates memo has narrowed the options by which you can prove. UN had posted a good link regarding all options that can satisfy USCIS.

There are many silly things sometimes the less educated agents at USCIS ask, that is the big problem. For example, for a company with less than 100 employees, it would be required that it had enough "net profit" to pay for the employee if the employee sought for LC is not working with them. As you guys know 2002 was not a good year; and if the LC was filed on or before 2002, the case can get rejected on this basis. Basically what I am telling you is their lack of financial accounting knowledge can your liability. So when preparing documentation for I-140 RFE, explain things in detail.

 

[vkv3056]

This is interesting. I am an illiterate on these aspects and want to learn more. What are the criteria involved vis-a-vis employer and employee for sponsoring a GC? Any information will be greatly appreciated.
Cheers.
vk

 

[cartic]

I have the exact problem that assur has described above. My lawyer got a call from a Texas INS officer asking for my W2 statements for 2002 and 2003. I work for a small consulting company. As you all know 2002 and 2003 were bad years as far as job market goes. I was in projects for only around 18 months out of the 24 months for 02 & 03. Subsequently I got paid only for the time period that I worked for. So wages on my W2's has less than that in labor form. So when i send my W2's this is going to be obvious. Will my I 140 be denied based on this?

Please advise how to proceed and resolve this issue.

 

[cartic]

Thanks for the prompt response. Can you clarify this - Will INS accept it If my employer gives a letter saying I took some time off in 02 & 03 and hence the salary was prorated? Actually I took some time off for medical reasons in 2002. But in 2003 I was out of project for 3 months. Thanks in advance for your reply.

 

[cartic]

BTW an RFE has not been issued officially. The INS officer called my lawyers office and asked for the information. So does that qualify as an RFE?

 

[cartic]

Update - My lawyers office says they are going to request the officer to issue a RFE for my case instead of sending the requested W2's and pay stubs.
Is this the right way to approach this problem? Please advise.

Thanks

 

[xyz2375]

USCIS is asking for W2 and paystubs because they want to see if you are really working for your employer and are getting paid by your employer on a regular basis

 

[vkv3056]

Thanks to Unitednations. He has been very helpful. And as somebody else also said, his posts undoubtedly qualify for the "Posts of the Year".

Best regards.
vk

 

[assur]

Not true. You are not even required to start working with employer until approval of adjustment of status. Even this has been thrown out by ac21 (ie., have to join sponsoring employer upon greencard approval).

See this memo from yates. (specifically page 5, first paragraph.

http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf

1- An employee has to prove that s/he was not OUT OF STATUS.
2- Low amount on W2 creates suspicion
3- Justification has to be prepared accordingly
The above were figured/worked out for me (by employer/lawyer), just in case.
Lets see whats happen?.

 

[assur]

485 outstanding gives status to stay in the country. You can sit and watch TV all day long and not work if you really wanted to. Low amounts on w2 could indicate that the company you are going to be working for is not real. That is another issue, as long as you can prove company is for real (that would be a different type of RFE).

If you worked then they want to ensure that the work you performed was authroized either through h-1b or ead.

UnitedNations, may be I missed something.
Here is the issue.
I work for company ABC ONLY and they hold my H1B since JAN 2001.
If I get only 10K in 2001, 20K in 2002, 30K in2003 then I have to prove that I was in STATUS and absent from job. Because the actual salary on LC is 90K. Now it has to justify.
The first thing that comming into picture is to maintain STATUS and reasonable justification not to getting, even the salary mentioned on LCA issued for H1B.

 

[Jharkhandi]

UnitedNations, may be I missed something.
Here is the issue.
I work for company ABC ONLY and they hold my H1B since JAN 2001.
If I get only 10K in 2001, 20K in 2002, 30K in2003 then I have to prove that I was in STATUS and absent from job. Because the actual salary on LC is 90K. Now it has to justify.
The first thing that comming into picture is to maintain STATUS and reasonable justification not to getting, even the salary mentioned on LCA issued for H1B.

Bhai - when are you going to join us?

 

[assur]

Bhai - when are you going to join us?

Filed/Joined you.
Day first addressed to you and UnitedNations. I did as you suggested me for preparation (I140/485).
See this
http://boards.immigrationportal.com/showthread.php?p=931509#post931509

 

[assur]

You're not missing anything. Pre and post 485 application are two different things.

Pre 485 application your only status is h-1b. Therefore, you have to ensure that you didn't violate that status (I haven't seen one issue/posting where people got paid less and it has been an issue for them. It has been an issue for the companies if you sued them for pay).

Once you apply for 485 then your main status becomes the 485. If you work after the application is filed then you have to have EAD or h-1b. Once again low wages would not get you in trouble but the company.

The main way you get in trouble is if you worked for another beneficiary or in another location that wasn't allowed by h-1b.

For arguments sake, let's say I'm an adjudicator and I have to abide by the law:

From the biographical information I would see all the places you last worked for the prior five years when you submitted 485. I would look to see that the locations and companies you worked for would be allowed by h-1b.

I would then look to see when you entered the country and if there were any gaps in h-1b (ie., transferring between employers without filing transfer of h-1b).

Since the adjudicator doesn't know what you did biographically after the 485 has been submitted they can then request w2's paystubs to determine after the 485 was filed did you engage in any unauthorized work. If you had EAD then none of the work would be unauthorized.

I agree that having low wages prior to 485 being filed can raise questions; such as were you working or were you just using h-1b to live in the country and you had been laid off, etc. I think you have stated that you have good justification for this.

However, keep in mind that pre and post 485 the situation is different. After 485 is filed that becomes your status to stay in the country and you don't have to do anything as long as you can show you have a job lined up upon greencard approval that meets the labor certification requirement.

That's correct. Pre-485 situations addressed in the letters written by lawyer, just in case. It could be a consulting/consultant situation while on bench ro out of project.

 

[cartic]

Update on my case : According to my lawyer the officer asked for my W2's and latest paystubs if I made the money mentioned in LC. If not he said that my lawyer could request for an RFE. So my lawyer has requested for an RFE, which I guess is for the ablility to pay.

Will it help my case if I framed a letter saying I took some time off from work in 2002 and 2003 for personal reasons? Please advise. Thanks.

 

[assur]

Update on my case : According to my lawyer the officer asked for my W2's and latest paystubs if I made the money mentioned in LC. If not he said that my lawyer could request for an RFE. So my lawyer has requested for an RFE, which I guess is for the ablility to pay.

Will it help my case if I framed a letter saying I took some time off from work in 2002 and 2003 for personal reasons? Please advise. Thanks.

Following is the solution was devised for my case like you.
-W2s for previous years, recent/latest pay-stubs
- In both cases if I earned lesser amount, this could be covered up by company's ability to pay, tax/audit papers.
- If I could show sufficient (amount= LC Wage - W2) in the Bank Statements, that is helpful as well.
- Papers that proves that I was In/out of country, such as canadian immigration, training, sickness, family/domestic circumstances, etc.

 

[dsugandhi]

Client address as work address, any possible issue for I-140?

Hello Gurus,

I have a small question. Here is my situation:

I am a software consultant working in software consulting firm. My company is located in CA and my client is located in CT(long term project). While filing labor, my attorney provided my client address (CT) as my work address. Can there be any issue on I-140 approval due to fact that my company does not have any branch in CT? If yes, any suggestion to fix it?

One more thing, I am paying CT state tax.

Thanks,