I-140 for PERM filed in 2012 denied for salary in 2011!
Joined company: December 6, 2011
PERM Filed: August 1, 2012 (with Prevailing Wages: $102,523.00 per year)
PERM Approved: September 27, 2012
I-140 Filed: October 15, 2012 (with Current Wages: $82,560)
I-140 RFE received: October 19, 2012
1.) It is noted that you submitted a copy of the beneficiary's pay stub from 09-16-2012 thru 09-30-2012 and of
the petitioner's form 1120S for 2011. Please submit additional evidence to establish that the petitioner had the
financial ability to pay the offered wage as of 08-01-2012 to the present time. Such evidence should include but
is not limited to audited financial statements.
I-140 RFE response sent: October 24, 2012 (received by USCIS: October 30, 2012)
I-140 Decision *Denied* sent: November 6, 2012
I do not have the copy of the new fax received by my lawyer yet. I will get that tomorrow and attach the contents here. However my lawyer says that the response received from USCIS doesn't make sense.
My current salary slips show that I have received from my company (YTD until 10/31/2012 70,359.68) and I will be receiving 15,000 more from my employer by year end which will put me at 85,359.68, more than my mentioned salary 82,560.00.
My lawyer says that my company has enough profits to give me the extra 20,000 required for prevailing wages compared to my current salary (when I get the green card) however the new fax from USCIS says that my employer didn't pay me the prevailing wages in 2011!? (not in 2012!).
He says that they have made an error and he will be requesting for an informal reopening of the case, else a formal opening and also a second filing of I-140 in premium processing..
My I-94 has end date of 12/27/2012 which is quite close to complete both the second time I-140 in premium and H1B in premium after that to get it approved before that.
I am also not sure what to expect from the second filing of the I-140.
Please advice me if it is common for USCIS to make mistakes and approve I-140 after denying it before?
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I don't think you can apply for second I-140 as you will need the original copy of labor. To the extent I know, re-opening I140 sill take lot of time. Experts please comment.
In my case when the prevailing wage came out higher than my current salary the company didn't proceed with PERM. It looks like unless you current pay matches or exceeds PWD USCIS will reject it (regardless of the fact that you need to be paid the PWD only when you get the GC) based on your current pay.
You can apply for second I-140 with a copy of PERM. USCIS internally requests DOL for a certified copy. However, in such cases, PP is denied by USCIS.
gchopes @ are you sure about that ?
My PW is higher than my current salary, currently I am waiting for my labor to be approved.
This means when I apply for 1-140 it will get rejected too ?
Experts please advice.
Here is the reply I have got from USCIS:
U.S. Department of Homeland Security
P.O. Box 82521
Lincoln, NE 68501-2521
Nov 06 2012
Refer to File Number:
Dear Sir or Madam:
Case Type: I-140, IMMIGRANT PETITION FOR ALIEN WORKER
This petition filed on October 15, 2012 seeks to classify the beneficiary as an employment based immigrant
under section 203(b)(2) of the Immigration and Nationality act, as amended.
Title 8, Code of Federal Regulations, Part 204.5(g)(2) states:
Any petition filed by or for an employment-based immigrant which requires an offer of employment
must be accompanied by evidence that the prospective United States employer has the ability to pay the
proffered wage. The petitioner must demonstrate this ability at the time the priority date is established
and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be
either in the form of copies of annual reports, federal tax returns, or audited financial statements. In a
case where the prospective United States employer employs 100 or more workers, the director may
accept a statement from a financial officer of the organization which establishes the prospective
employers ability to pay the proffered wage. In appropriate cases, additional evidence, such as
profit/loss statements, bank account records, or personal records, may be submitted by the petitioner or
requested by the service.
The labor certificate establishes the priority date as August 01, 2012 and the proffered annual wage as $102,523.
The issue in this matter is whether the petitioner has the ability to pay the beneficiary. The following pertinent
evidence was submitted with the petition: a copy of the beneficiary's pay stub dated 09-16-2012 thru 09-30-2012
and a copy of the petitioner's Form 1120S for the year 2011.
USCIS issued a Request for Evidence on October 19, 2012 citing the ability to pay for the year 2012. The
petitioner sent its response on October 30, 2012. The contents of each request for evidence are part of the record
and will not be revealed here.
In response to the Request for Evidence the petitioner has submitted the following: a copy of the petitioner's
Form 941 for the year 2012 and copies of the beneficiary's pay stubs dated from 07-01-2012 thru 10-15-2012.
The ability to pay the offered wage may be established in one of three ways:
1. The petitioner has already been employing the beneficiary at a rate equal to or greater than the
2. The petitioner's net income/adjusted gross income is equal to or greater than the proffered wage; or
3. The petitioner's net current assets (defined as current assets minus current liabilities) are equal to or
greater than the proffered wage.
The financial information contained in the record is shown below:
A B C D E F G
Year Proffered Wages Shortfall of Net Income Net Current ATP
Wage Paid Wages Assets Established
2011 $102,523 Not $102,523 $36,799 $20,673 No
2012 $102,523 $66,609 $35,914 Not Not No
Column D is the difference between Column B and Column C.
Column E is taken from line 21 of Form 1120S.
Column F is taken from page 2 of the audited financial statements provided.
Column G is determined by whether the amount in either Column E or F exceeds Column D.
Reliance on federal income tax returns as basis for determining a petitioner's ability to pay the proffered
annual wage is well established by judicial precedent. See Elatos Restaurant Corp v Sava, 632 F. Supp, 1049
Counsel contends that the petitioner is not obligated to pay the proffered wage until the beneficiary obtains
lawful permanent residency. While this may be true, the petitioner is obligated to establish that it has the
ability to pay the proffered wage from the priority date and continuing until the beneficiary obtains lawful
permanent residency. See 8 CFR 204.5(g)(2). In this case, the petitioner has not established that it paid the
beneficiary the proffered wage, nor that it could pay the beneficiary from its taxable income or its net current
Therefore, the evidence does not establish that the petitioner had the ability to pay the proffered wage at the time the priority date was established and continuing to the present.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361.
The petitioner has not sustained the burden.
In view of the above, the petition is denied.
You may appeal this decision to the Administrative Appeals Office. In the alternative, you may file a motion to reopen or reconsider with this Service Center. Your appeal or motion to reopen or reconsider must be filed on
Form I-290B, Notice of Appeal or Motion within 30 days of the date of this notice (33 days if this notice is
received by mail). You must mail your Form I-290B, along with the appropriate filing fee and other
documentation in support of the appeal or motion, to the correct address. Do not mail your completed Form I-
290B directly to the Administrative Appeals Office or to this Service Center.
To obtain the filing locations, the required filing fee amount, and more information about the Form I-290B filing
requirements, please refer to the USCIS website at http://www.uscis.gov/forms.You may also contact the
National Customer Service Center (NCSC) at 800-375-5283.
This decision does not prevent you from filing any petition or application in the future.
The Small Business Regulatory Enforcement and Fairness Act established the Office of the National
Ombudsman (ONO) at the Small Business Administration. The ONO assists small businesses with issues
related to federal regulations. If you are a small business with a comment or complaint about the regulatory
enforcement, you may contact the ONO at www.ombudsman.sba.gov or phone 202-205-2417 or fax 202-481-
My question is why they considered the tax statements etc only for year 2011 when I worked only for one month. My employer is planning to release the P&L statements hoping they would add to 2012. He also sais that he had given bank statements for 2012 but it seems they were not even looked at. What other documents can be added so that they would add to the columns E and F of year 2012 row?
you can re apply for 140 with out PERM ..
your attorney will know about it ..
i guess it is 4 th section of 140 application
The RFE response clearly says that your employer has not provided enough proof of his ability to pay your salary once you got green card. That is why it is denied, not because your current pay is less than prevailign wages. The denial also clearly mentions that it is possible for you get less salary than what you will get once you get your GC, but your emplyoer must show that he can pay that. Has your employer submitted his audited financial statements and other details to prove that he is in good shape financially to pay you the salary.
We also got similar RFE for my 140 and I am also getting less salary now than what was mentioned in prevailing wages. But my employer responded with his financial statements etc. not with my salary slips.
Hope this helps....
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