I-140 Denied Ability to Pay

[rbashir]

Guys,
Now I know that I am screwed. Today my lawyer told me that my I-140 is denied due to the ability to pay issue. I applied for the I-140 in February 2007, Got RFE in August 2007, Responded to RFE in Ocetober 2007, My RFE was really huge, and now the denial comes on to the Ability to pay issue.
I just had a meeting with my laywer and he told me that I am simply messed up and nothing can be done. I suggested him to take the route of to get the finiancial statement from the company CPA and then appeal. Here is my current situation and I am really looking towards all of your for helping me out here so PLEASEEEEEEEEEEEEEEEEEEEEE help me.

• H1b is expiring in June 2008
  
  I don't know what comprises a financial statement from the CPA ( Can anybody provide me with the template or sample)
  
  AS per labor I suppose to be getting 70000$ as my wage starting from the year 2003 to 2006, but I was not though the difference is not that huge and can be adjusted in vacation time etc.
  
  The company is really samll about 15 employees.
  
  The company tax returns for year 2003, 2004, 2005 are not good

Now the question is should I file MTR or file an appeal. What is best way to get the approval and also to get an extension on H1b so that If necessary I can file for another labor from the same employer.

Please help me

RB

[Munna Bhai]

Originally Posted by rbashir

Guys,
Now I know that I am screwed. Today my lawyer told me that my I-140 is denied due to the ability to pay issue. I applied for the I-140 in February 2007, Got RFE in August 2007, Responded to RFE in Ocetober 2007, My RFE was really huge, and now the denial comes on to the Ability to pay issue.
I just had a meeting with my laywer and he told me that I am simply messed up and nothing can be done. I suggested him to take the route of to get the finiancial statement from the company CPA and then appeal. Here is my current situation and I am really looking towards all of your for helping me out here so PLEASEEEEEEEEEEEEEEEEEEEEE help me.

• H1b is expiring in June 2008
  
  I don't know what comprises a financial statement from the CPA ( Can anybody provide me with the template or sample)
  
  AS per labor I suppose to be getting 70000$ as my wage starting from the year 2003 to 2006, but I was not though the difference is not that huge and can be adjusted in vacation time etc.
  
  The company is really samll about 15 employees.
  
  The company tax returns for year 2003, 2004, 2005 are not good

Now the question is should I file MTR or file an appeal. What is best way to get the approval and also to get an extension on H1b so that If necessary I can file for another labor from the same employer.

Please help me

RB

Your current salary has nothing to do with ability to pay issue. It looks like your company's tax returns was not good enough and uscis sees that company cannot pay what they state in labor.

Open MTR and borrow sometime and meanwhile jump to another company and start fresh. If your I-140 is approved, you will get 3 years extension.

[gc_chahiye]

Originally Posted by rbashir

Guys,
Now I know that I am screwed. Today my lawyer told me that my I-140 is denied due to the ability to pay issue. I applied for the I-140 in February 2007, Got RFE in August 2007, Responded to RFE in Ocetober 2007, My RFE was really huge, and now the denial comes on to the Ability to pay issue.
I just had a meeting with my laywer and he told me that I am simply messed up and nothing can be done. I suggested him to take the route of to get the finiancial statement from the company CPA and then appeal. Here is my current situation and I am really looking towards all of your for helping me out here so PLEASEEEEEEEEEEEEEEEEEEEEE help me.

• H1b is expiring in June 2008
  
  I don't know what comprises a financial statement from the CPA ( Can anybody provide me with the template or sample)
  
  AS per labor I suppose to be getting 70000$ as my wage starting from the year 2003 to 2006, but I was not though the difference is not that huge and can be adjusted in vacation time etc.
  
  The company is really samll about 15 employees.
  
  The company tax returns for year 2003, 2004, 2005 are not good

Now the question is should I file MTR or file an appeal. What is best way to get the approval and also to get an extension on H1b so that If necessary I can file for another labor from the same employer.

Please help me

RB

1. appeal the decision asap.
2. on the basis of the appeal file for an H1 extension+transfer to another employer (you can file an extension upto 6 months in advance)
3. start another LC ASAP with the new employer.

[Munna Bhai]

Originally Posted by Munna Bhai

Your current salary has nothing to do with ability to pay issue. It looks like your company's tax returns was not good enough and uscis sees that company cannot pay what they state in labor.

Open MTR and borrow sometime and meanwhile jump to another company and start fresh. If your I-140 is approved, you will get 3 years extension.

Ok, I made a mistake. Your I-140 is denied and your H1b is going to be over by June 2008.

Open MTR and quickly search for another job.

[rbashir]

Originally Posted by gc_chahiye

1. appeal the decision asap.
2. on the basis of the appeal file for an H1 extension+transfer to another employer (you can file an extension upto 6 months in advance)
3. start another LC ASAP with the new employer.

How should I appeal. what an appeal consists of?

[brij523]

Ask the company to put in some $250,000 in bank and get Letter of Credit. That could be used to prove that company has sufficient credit to pay you for XYZ years.
Letter of credit can also be got by paying some monthly charges.

Your situation is critical. One of my friend had to go back to India because the company which was processing GC did not have strong credit credential.

[rbashir]

Guys,
At this time I need to buy more time, is it possible to file and extension based on the appeal and in the mean time file labor from another company in PERM and file another i140. How can I fiile the appeal to buy more time. Please advice

Thanks

RB

[brij523]

go to immigration.com and research for MTR. You will get tons of detail about how to file MTR.

[gc_chahiye]

Originally Posted by rbashir

How should I appeal. what an appeal consists of?

your lawyer needs to file this appeal (its the company's petition, not your own).
If he is unsure, hire a very good attorney (murthy/rajiv khanna/matt oh/shusterman):

See question #5 here about the appeal/MTR process:
http://immigration.about.com/library.../aa100700b.htm

[rbashir]

Originally Posted by brij523

go to immigration.com and research for MTR. You will get tons of detail about how to file MTR.

I heard there is a defference between MTR and Appeal, which one better to buy the time.

RB

[pappu]

To properly comment on such questions, one must see all the RFE and denial letter details and the documents you submitted.. Without that it is impossible to get the complete picture and where things went wrong. So I will just answer based on little details I read in the post. This is not a legal advice and I am not an expert. Use it at your own risk.
- First. When you get an RFE for ability to pay, you must always make sure you have a good attorney who can spend lot of time preparing your RFE and is an expert in these matters. Then, if a CPA's help is needed, your employer must get help from a CPA.
- File an appeal. The decision of this appeal will take more than a year. So you can use this pending application as a basis to get your H1B extended.
- If your employer wants to employ you permanently, he can file another GC application and start from scratch.

[rbashir]

Originally Posted by pappu

To properly comment on such questions, one must see all the RFE and denial letter details and the documents you submitted.. Without that it is impossible to get the complete picture and where things went wrong. So I will just answer based on little details I read in the post. This is not a legal advice and I am not an expert. Use it at your own risk.
- First. When you get an RFE for ability to pay, you must always make sure you have a good attorney who can spend lot of time preparing your RFE and is an expert in these matters. Then, if a CPA's help is needed, your employer must get help from a CPA.
- File an appeal. The decision of this appeal will take more than a year. So you can use this pending application as a basis to get your H1B extended.
- If your employer wants to employ you permanently, he can file another GC application and start from scratch.

When I got the RFE, my lawyer submitted the company's tax returns and my W2s only. The denial says that since the employer is not paying me the profferece wages in the year 2003 , 2004 , 2005 and 2006, and also while responding to the RFE Statement from the CPA was not submitted as an alternative to the tax returns since tax returns were very weak, thus the denial. Now the situation is that I know that even after appeal chances of approval are bleak but I am not worried about that right now the reason is at this time I only need to buy some time to apply for a new labor through another company with stronger financial background and that will pay me the right wages. I have alreay talked with that company about 15 minutes ago and they agreed to file my new LC and transfer my H1. I am only concern is how to appeal and buy some time.

RB

[go0dfella]

Originally Posted by rbashir

I heard there is a difference between MTR and Appeal, which one better to buy the time.

RB

i would also suggest to start another perm right away. you can get 1 year H1 extension based on labor.
however you existing case is similar to mine. you should appeal the decision but by law USCIS looks for 3 things.

1) your salary is same or more what lobor says at the time of labor filing. ( at that point it doesn't really matter if finacial are weak or strong or even if company has only $100 in their account)
2) company's profit must be more than prevailing wage at the time labor filing.
3) if not above 2 then company must have strong assets.

USCIS normally accept audited financials ot tax returns. audited financials are done through CPA or audit firm.

if i were you i would certainly start perm right..regardless of the outcome of appeal.
also you must hire a good lawyer.

[rbashir]

Originally Posted by go0dfella

i would also suggest to start another perm right away. you can get 1 year H1 extension based on labor.
however you existing case is similar to mine. you should appeal the decision but by law USCIS looks for 3 things.

1) your salary is same or more what lobor says at the time of labor filing. ( at that point it doesn't really matter if finacial are weak or strong or even if company has only $100 in their account)
2) company's profit must be more than prevailing wage at the time labor filing.
3) if not above 2 then company must have strong assets.

USCIS normally accept audited financials ot tax returns. audited financials are done through CPA or audit firm.

if i were you i would certainly start perm right..regardless of the outcome of appeal.
also you must hire a good lawyer.

Do you know good lawyer in Washington Dc area, my lawyer just told me that he never filed an H1 extension based on an appeal and dont know how to do it
RB

[kaisersose]

Originally Posted by rbashir

Do you know good lawyer in Washington Dc area, my lawyer just told me that he never filed an H1 extension based on an appeal and dont know how to do it
RB

Khanna's your man. He costs big bucks, but is among the top bracket and knows what he is doing.