Q: For I-140 petition, what is the employer's ability to pay the proffered wage?

A: For immigration categories that require the Labor Certification application, once the employer has obtained the Labor Certification, the employer can file an I-140 immigrant petition for an alien with the USCIS.

One purpose of I-140 petition that requires a certified Labor Certification is to establish that the employer has the ability to pay the offered wage stated in the Labor Certification application. The employer must be able to prove its ability to pay the proffered wage at the time the priority date is established, and continuing until the beneficiary employee obtains the lawful permanent residence.

Q: How to establish the ability to pay the offered wage?

A: AN employer must establish that it had the ability to provide the salary stated on the certified Labor Certification and the I-140 immigrant petition, since the filing date of the Labor Certification application. Establishing how to prove that an employer has the ability to pay has continued to raise concerns, and the USCIS had issued a guidance to its Service Centers to clarify what types of documents are acceptable, and the basic review procedures. The ability to pay can be established by: 

1) the employer actually paid the employee salary equal to or greater than the offered wage, or 

2) the employer's net income was equal to or greater than the offered wage, or 

3) the employer's net current assets were equal to or greater than the offered wage.

Q: What is the required evidence to prove the ability to pay the offered wage?

A: A petition filed for an employment-based immigrant, which requires an offer of employment, should be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage. A petitioner should file a completed Form 1-140 along with initial evidence establishing its ability to pay the beneficiary the proffered wage. The required initial evidence should include copies of employment of the beneficiary, net income, net current assets.

The petitioner should submit a copy of at least one of these required documents. Based on one of the three of the above mentioned documents, the USCIS needs to make a positive ability to pay determination. USCIS adjudicators are not required to accept, request, or issue an Request For Evidence (RFE) for a financial statement from U.S. employers who employ 100 or more workers to establish ability to pay. 

Q: What If the required initial evidence submitted does not establish the petitioner's ability to pay?

A: If the required initial evidence is submitted, and it does not establish the petitioner's ability to pay, USCIS adjudicators may deny the I-140 petition. If the case is denied, the petitioner may file an appeal or a motion to reopen the case. If the USCIS adjudicator exercises discretion to accept either the financial statement or additional financial evidence, that evidence must clearly establish the petitioner's ability to pay. 

If the USCIS adjudicator has any doubts about whether the additional documents establish the petitioner's ability to pay, the adjudicator may deny the petition and not request for additional evidence to further clarify the discretionary evidence.

Q: Can I use my W-2s and payroll documents to establish my employer's ability to pay?

A: The common documents for an employer to establish the ability to pay include Form 941 Employer's Quarterly Federal Tax Return, W-2s and Tax Statements, Payroll Documents, Taxable Income that exceeds the proffered wage in the year of filing and in all subsequent years are the best evidence of ability to pay the proffered wage, but small businesses may withdraw profits as “compensation to officers” to avoid double taxation. 

Taxable income, together with a portion of compensation to the officers of a small company could exceed the proffered wage, whereby the net effect is that upon employment of another employee, a reduction of the overall compensation to officers would occur, and the company will be able to compensate the employee with the proffered wage.

Q: Can I use bank statements and lines of credit to establish employer's ability to pay?

A: Bank Statements and Lines of Credit must show that the line of credit was in effect as of the date of filing and documentation. Absent corroborative documentary evidence, such as audited or reviewed financial statements, or federal tax returns, a statement from an accountant is not considered to be substantive evidence of an organization's ability to pay the proffered wage.

Annual Reports, Profit Loss Statement, Audited Financial Statements can impact upon an employer's ability to pay proffered wages. If the current assets exceed the current liabilities with sufficient funds to compensate the beneficiary employee upon review of an organization's current assets to current liabilities on the balance sheet, then the organizations ability to pay the proffered wage is generally considered to be established. 

Q: What is the requirement of bachelor's degree or "equivalent" in the I-140 petition?

A: The requirement of bachelor's degree or "equivalent" in the I-140 petition can be established only by academic education and degree. Here, the language "equivalent" in the I-140 petition is taken by the USCIS as an "equivalent foreign degree", and not combination of education and experience. 

Additionally, in the EB-2 based I-140 petition, even if the Labor Certification application stated that the employer would accept a combination of education and experience in lieu of the bachelor's degree, for the purpose of establishing the requirement of "a bachelor's degree" followed by five years of progressive requirement, the USCIS may not accept such proof to meet the threshold qualification requirement for the EB-2 I-140 petition. 

Q: Can my working experience be counted to prove a degree requirement in the I-140 petition?

A: People are often confused between the H-1B professional degree or equivalent requirement and the degree or equivalent requirement in the I-140 petition. In the H-1B petitions, a four-year college degree can be satisfied by an evaluation of combination of education and experience or entirely on experience.

But in the I-140 petition, unless the Labor Certification specifically states that the employer will accept such combination, experience cannot be counted to prove a degree requirement in the I-140 petition.

Q: What is the major advantage of filing I-140 petition in EB-2 immigrant category?

A: The major advantage of filing I-140 petition in EB-2 immigrant category is to get the Green Card faster than the EB-3 category, because of more immigration visa number available in EB-2 than in EB-3 category, in most situation.  

Q: What do I need to know for Labor Certification based EB-2 I-140 application?

A: In the employment-based immigration, the interest in the EB-2 based I-140 petition has substantially increased, and there are a few things which the EB-2 applicants must bear in mind before one considers this option. In the EB-2 Labor Certification application, it is extremely important that the education and experience requirements are "carefully" drafted in the Labor Certification application. Otherwise, people would experience a nightmare or denial of EB-2 petition at the stage of USCIS I-140 petition proceedings, after wasting the time to obtain a labor certification application. 

In the labor certification application, employer must require either a master's degree or equivalent, or alternatively a bachelor's degree with 5 years of progressive experience. In the Labor Certification application, "equivalent" means an equivalent "foreign degree." Thus, unless the alien applicant proves that he or she has a master's degree from a U.S. institution or equivalent degree from a foreign academic institution, he or she will not be able to file EB-2 based I-140 petition. 

Q: What is the "single" bachelor's degree requirement for EB-2 based I-140 immigrant petition?

A: If the employer required a bachelor's degree or equivalent plus 5 years of progressive experience as an alternative to a master's degree requirement, the requirement of "a bachelor's degree or equivalent" can be proven only if he or she attained a "single" bachelor's degree either from a U.S. academic institution or a foreign academic institution. According to an USCIS' decision, combination of two or more academic degrees cannot satisfy a bachelor's degree or equivalent degree requirement. 

Q: For EB-2 based I-140 immigrant petition, what is the "5-year progressive experience" requirement for people without master degree?

A: Assuming that an alien is able to establish that he or she attained a 4-year bachelor's degree, the next threshold is to prove the "5-year progressive experience." The USCIS' requires that the experience must have been gained after attaining a bachelor's degree. Accordingly, any experience which was gained prior to attaining a bachelor's degree cannot satisfy the 5 year progressive experience requirement. 

Q: For EB-3 based I-140 application, can I use "equivalent degree" to meet the bachelor's degree requirement?

A: The requirement for academic degree and experience requirement tends to be inconsistent in reality and in the USCIS practice between EB-2 and EB-3. Unlike the EB-2 petition, in the EB-3 requirement, it has been the USCIS' position that when a bachelor's degree or equivalent degree is required in the Labor Certification, the degree requirement can be established by a combination of one or more academic degrees. 

Q: For I-140 petition, is there any requirement for the experience listed in the Labor Certification?

A: In the EB-2 based I-140 petition, the regulation uses a specific language of a bachelor's degree "followed by" the five years of progressive experience. 

For instance, if the Labor Certification application required a bachelor's degree or a master's degree, any experience during the degree program has been fairly liberally accepted by the USCIS. However, when an alternative requirement in lieu of a bachelor's degree or a master's degree is required in the Labor Certification application, the USCIS has interpreted the law more narrowly.

Q: What is the "post-graduate" experiences in the EB-2 based I-140 petition?

A: When it comes to the requirement of experience, it also has been USCIS' position that the experience during the period of degree program can be counted to satisfy the experience requirement in the Labor Certification application if the degree requirement is satisfied. 

This is drastically contrasted to the experience requirement in the EB-2 based I-140 petition requiring a bachelor's degree plus 5 years of progressive experience that only counts "post-graduate" experiences. In the EB-2 based I-140 petition cases, the definition of degree and experience requirement is more strict, restrictive, and narrow, because of the specific languages in the EB-2 regulation, as opposed to the definition of degree and experience requirement for the EB-3 regulation.

Q: I applied I-140 before with my previous employer, can I keep my priority date after job change?

A: Many people confuses the rule of priority date transfer in the immigration proceedings. The priority date of employment-based immigrant petition is retained only after the I-140 petition is approved, and the alien beneficiary of multiple approved I-140 petitions through the same employer or different employers can claim the earliest priority date in the I-485 application proceedings.

The retained priority date is limited to the "individual" alien beneficiary only, and cannot be transferred to other individuals including the spouse, even if the spouse has another approved I-140 petition. 

Q: My employer applied I-140 for me, can I transfer my priority date based on I-130 petition filed by my parents several years ago?

A: The retained priority date is available for such transfer only between or among the multiple employment-based I-140 petitions for the same alien. The employment-based priority date cannot be transferred to or from a family-based immigrant petition of I-130 petition of the same alien, or other non-employment based immigrant proceeding such as diversity immigrant proceeding or refugee proceeding. 

Q: My I-140 application is pending,  what are the consequences for my Green Card application process during an immigrant visa number retrogression?

A: When the immigration visa number is unavailable for an alien, either because of the total unavailability of the visa numbers for everyone in certain category, or when the visa number is generally available because of the cutoff date and one's priority date is far from the cutoff date, there are consequences taking place depending on at what stage he or she is in for the Green Card process. 

For those who are still at the stage of Labor Certification or I-140 application, it means that even if an alien employee can get the Labor Certification or I-140 approval, the alien employee will not be able to file an I-485 application during such period, and consequently no EAD or Advance Parole will be available as well. 

Q: My I-483 application is pending,  what are the consequences for me during an immigrant visa number retrogression?

A: For those who have already submitted I-485 applications, it means that the USCIS will not be able to conclude his or her application during the period of visa unavailability, and the USCIS will just store the application and wait for the visa number availability for him or her, until it becomes available.

Q: With one certified EB-2 Labor Certification application, can I file both EB-3 and EB-2 base I-140 petitions at the same time?

A: People should keep in mind a few rules in the immigration laws that can help them to survive during the long journey to the Green Card target. When the visa number retrogressed steep with unpredictability of the patterns of each category of employment-based immigrant petitions, the employers can file both I-140 EB-2 and EB-3 petitions using one certified EB-2 Labor Certification, and depending on the specific progression for EB-2 or EB-3 visa numbers to file the I-485 application.

Q: Why an employer can file both EB-3 and EB-2 base I-140 petitions, with one certified EB-2 Labor Certification application?

A: Under the immigration rule, an employer can file EB-2 I-140 petition and EB-3 I-140 petition either simultaneously and separately using the same certified EB-2 Labor Certification application. 

Since the EB-3 petition threshold requirement is minimum of a bachelor's degree, the holder of an advanced degree is automatically qualified for EB-3 I-140 petition once the EB-2 Labor Certification has been certified by the Department of Labor. 

Q: My previous employer applied I-140 in EB-3 for me, can I transfer my priority date to my I-140 application in EB-2 filed by my current employer?

A: Under the immigration rule, the priority date of one class of employment-based petition is transferable to another class of employment-based petition. Priority date is retained if the approved I-140, and it is not either revoked or withdrawn by the employer. 

For instance, assume that EB-2 Labor Certification and EB-2 based I-140 petition were approved through the Employer A, but the alien changed the employment to Employer B. Through Employer B, another Labor Certification of EB-3 was approved afterwards. The employer B will be able to file I-140 petition for EB-3 with the priority date established by the Employer A. The same is true with the Labor Certification waived EB-2 NIW petition and EB-3. Accordingly, if one has to change employment, one should make sure that the old employer does not withdraw the I-140 petition, so as to borrow the earlier priority date.

Q: After my I-140 approval, in what situation I can change job?

A: The immigrant visa portability AC-21 Act allows the employee of an approved I-140 application, who has filed an I-485 Adjustment of Status Application and has waited more than 180 days, to transfer the approved I-140 application to a new employer. AC-21 portability is generally available to an individual who is the beneficiary of an approved I-140 and whose I-485 has been pending at least 180 days. The benefits of AC-21 portability are available to any qualified individual, even if there is not an available visa number for his or her case. 

As long as the person had previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC-21. Given that some I-485 applicants may be retrogressed for several years, particularly those in the EB-3 classification with recent priority dates, this ability to change jobs may be very useful in allowing individuals to progress in their careers, or to find new employment in the event of a layoff. As with any major decision, it is important to be aware of the potential risks involved before changing jobs. 

Q: My company is in the process of acquisition, will this affect my approved Labor Certification?

A: This is the era of frequent corporate merger or acquisition. Depending on the type of merger or acquisition, the alien with pending or approved Labor Certification and/or I-140 can be affected. However, once the Labor Certification is approved, the DOL has no authority to amend the certified labor certification application, and it is up to the USCIS to permit the transfer of the approved Labor Certification to the acquiring or merging employer. 

Q: My company will be merged in to another company soon, will this affect my approved I-140 application and pending I-485 application?

A: For those who reached the stage of 180-day after filing of I-485 with the approved I-140 petition, corporate merger or acquisition does not affect them at all, regardless of the specific type and nature of merger or acquisition, as they can use AC-21 portability to work for new employer. 

However, those who have yet to reach such stage (180-day after filing of I-485 with the approved I-140 petition), the nature and type of merger or acquisition will have a critical consequence, unless it satisfies the successor-in-interest merger or acquisition.

Q: If I change job after I-140 and I-485 application, does it have to be in the same field?

A: If the I-140 petition has been approved and the I-485 application has been pending for more than 180 days, then the employee can port the certified Labor Certification application and approved I-140 to a new employer, as long as the new job is in the "same or similar occupational classification." 

Q: If I change job after I-140 approval and I-485 application, what will happen if my previous employer revokes my I-140 application?

A: Even if the I-140 is revoked by the previous employer, the portability is still allowed, as long as the I-140 was approved and the I-485 has been pending for more than 180 days. 

One reason of the AC-21 Act is to allow the employee who suffer from delays to commence employment at a new employer, without being kept to the first employer during lengthy processing. There is no requirement in general that the beneficiary employee be working for the petitioner throughout the Green Card process.

Q: If I change job using the AC-21 rule, do I need to ask my new employer to submit another I-140 application?

A: There is no need for the new employer to submit an I-140 application, but a letter of intended employment is required to send to USCIS. The letter should detail that the position is in the "same or similar occupational classification," accompanied by a copy of the I-140 approval notice and I-485 Filing Receipt, indicating 180 days or more have passed since the filing. 

Q: Before changing job using the AC-21 rule, what should else I need to know? 

A: Assuming that the I-140 has been approved, and I-485 has been pending for more than 180 days, then the applicant can port the certified Labor Certification Application and approved I-140 to a new petitioner, as long as the new job is in the "same or similar occupational classification." There is no need for the new employer to submit an I-140 application. 

But to be safe, you should examine the duties, requirements, and salary of the position as stated in the certified Labor Certification Application form.

Q: With an approved Labor Certification application, can I change job before the I-140 approval?

A: With approved Labor Certification application, if you change job before the I-140 approval, your employer may withdraw the I-140 application. If the employer withdraws the I-140 before it has been approved, the USCIS will NOT provide the employee an opportunity to change employer with certified Labor Certification application.

Q: With my I-140 approval and I-485 application pending, can I change jobs multiple times using AC-21?

A: An alien applicant whose I-485 adjudication may be delayed by several years as the result of retrogression could be in the situation of having to change jobs not just once, but multiple times. 

The question of whether one may take advantage of AC-21 portability more than once and still obtain the Green Card approval is neither addressed in the AC-21 Act, nor in any USCIS policy guidance. It would appear that, provided the basic requirements for AC-21 portability are met, one would be eligible to change jobs or employers multiple times pursuant to AC-21. 

Q: With I-140 approval and I-485 application pending, do I have to get a "permanent" position for the job change?

A: AC-21 requires that the applicant have a permanent (non-temporary) job offer as the underlying basis for the Green Card approval. If one has a history of bouncing from job to job, this could raise questions as to employment stability and whether the individual has a qualifying, permanent job offer. 

Therefore, when there is a choice with regard to changing jobs, employment stability and the potential for longevity with the new employer are valid concerns.

Q: Before an I-140 denial, will I get the Request for Evidence (RFE) first?

A: The USCIS has issued a Memorandum reminding USCIS Regional Directors, Service Center Directors, District Directors, and Officers-in-Charge that immigration regulations do not require a Request for Evidence (RFE) in every instance before issuing a denial. 

The Memo further describes situations in which the USCIS does not believe an RFE will be required. Although the intent of the Memo may be to expedite processing of cases, this may result in denials, without affording the employer or applicant an opportunity to respond to an RFE. 

Q: What are the general reasons used for USCIS to deny an I-140 application?

A: The USCIS appears to dig into the I-140 supporting documentation and develop issues of I-140 denial from these evidence, such as income tax returns, W-2 copies, etc., which can be used to challenge employer's financial ability to pay, or existence of real permanent job or real business, or legitimate nature of job opening as related to the familial relationship between the employer and the alien, etc. 

Q: For I-140 application, what is the clear evidence of an alien applicant's ineligibility?

A: Immigration regulations provide that an I-140 case may be denied when there is clear evidence of ineligibility. These situations include I-140 petitions filed on behalf of someone who does not have the required degree or equivalence. An I-140 petition with evidence of clear ineligibility will result in denial. 

It is critical for petitioners, beneficiaries, and applicants to submit the required evidence proving eligibility for the immigration benefits sought at the time of filing. Otherwise, an application may be denied outright, without an RFE. If a person is not eligible for the immigration benefit sought, then it would make sense that the petition or application should be denied.

Q: Are USCIS adjudicators required to issue an RFE, if there are some problems in my I-140 application?

A: USCIS indicated that while there can be a number of documents the petitioner may choose to submit to show its financial ability to pay an employee's salary, the USCIS adjudicator is not required to issue an RFE, as long as the petitioner sent at least one of the required documents. If the adjudicator does not believe that the particular document establishes the ability of the sponsoring employer to pay the I-140 employee or beneficiary the prevailing wage, then the adjudicator may deny the case, without an RFE's requesting additional evidence from the employer of its ability to pay.

Q: As an employee, do you agree that it is not easy for us to obtain employer's financial documents for my I-140 application?

A: In many cases, due to the burdens of obtaining each financial record and concern for the privacy of such information, employers or petitioners are reluctant to provide every financial document that could prove the employer's ability to pay the required prevailing wage upfront. 

Petitioners and alien applicants will need to rethink this position to avoid I-140 application denials, due to insufficient documentation as viewed subjectively by a particular USCIS examiner or adjudicator.

Q: What I need to do if my I-140 application is denied?

A: In many instances, if a case is denied, the petitioner may file a Motion to Reopen or Motion to Reconsider. Most motions must be filed within 30 days of the denial and require an additional filing fee. If the Motion is denied and the petitioner or applicant decides to file an appeal with the Administrative Appeals Office (AAO), then the AAO may take another year or longer to finally adjudicate the case. 

The fastest and easiest solution for many petitioners and alien applicants would be to re-file the application, with a new filing fee, and submit all documents up front to avoid the denial. 

Q: if my I-140 application is denied? do I get any specific reason?

A: A denial is required to be written in a manner that clearly and specifically explains the reasons for the denial. It is disappointing that some USCIS examiners may deny cases in which the documents submitted are insufficient to clearly result in an approval, instead of simply issuing an RFE. 

Q: Does the denial of I-140 petition invalidate the underlying certified Labor Certification?

A: Denial of I-140 petition does not invalidate the underlying certified Labor Certification application, unless it is invalidated for fraud or revocation. Accordingly, the petitioner can re-file the I-140 petition. 

Q: After the denial of I-140 petition, can I appeal it to AAO and refile the I-140 again at the same time?

A: A single certified Labor Certification application cannot support two I-140 petitions, particularly when the petition is denied and appealed to AAO. 

For this reason, the USCIS requires that the petitioner first withdraws the appeal which is pending at the AAO, in order to re-file I-140 petition. Otherwise, re-filing of I-140 petition will be denied. Once it is withdrawn, the USCIS Service Center will accept the withdrawal letter, and send it to AAO as evidence of withdrawal.

Q: After the denial of my I-140 application, can I apply for 7th-year H-1B extension?

A: For H-1B 7th-year extension, such extension will be available until there is a "final" decision of the I-140 petition. The denial of an application is not final, if the decision of the denial is appealed and pending. 

Accordingly, those who need extensions beyond H-1B six-year limit and whose application is pending more than 365 days before reaching H-1B six-year limit should file appeal of the denial of the I-140 applications. If their Labor Certification was approved but I-140 is denied, such USCIS denial decision may also be appealed to the AAO.

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