application returned back as bad check and now the deadline is missed

huakchusa

By huakchusa,
in AOS & CP : General

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huakchusa Member

huakchusa

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I am putting this question here because the question is general and applicable to other type of cases too.

My PERM expiry date was 11/15, we submitted I-140 application on 11/15. But the application returned back saying the "check is 90 days old so not valid". Now if we resend the I-140 with new check, would USCIS honor 11/15 as the original receipt date?

Bell, Joe, other experts, please advice, this is very urgent...

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huakchusa Member

huakchusa

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Belle/Joe, thanks and good questions ...

Yes, I have an immigration attorney.

Here are more details ...

As soon as my PERM got approved in May-2010, we prepared the whole I-140 application package. After all the forms, checks etc was sent to the attorney, we came to know that my employer's 2009 tax papers are not ready. The accounting firm asked for one month. So we thought of waiting. That one month kept getting extended by another month and so on. I had to wait because if USCIS sends RFE for tax papers and if the tax-papers are not ready by RFE deadline, the case may get denied. right? Finally the accounting firm said the tax deadline is 11/15 and my PERM expiry was also 11/15. So we thought let's wait. The tax papers became ready on 11/11, and immigration attorney sent the I-140 package on 11/12(Friday) which reached USCIS on 11/15(Monday). Now whoever's mistake you call it, the old check that was prepared in May-2010 went with the application and the package is sent back saying submit with another check as this check is more than 90 days old.

The attorney is sending the I-140 packet today with the new checks of new increased fees as the fees changed effective today.

I am ready to take part of the blame for the delay. What are the chances USCIS will consider our request? If they send back the package again saying your PERM is expired, can we contact ombudsmen or try anything else?

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Belle Advanced Member

Belle

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It's lawyer's fault. They should have filed with old tax papers (it's OK to get an RFE), AND they should have made sure the check is fresh. Since you are not the petitioner, there is really nothing can be done on your side, but your employer may present this argument and ask the lawyer to do another LC/PERM for free.

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  • 3 months later...
huakchusa Member

huakchusa

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We reapplied for EB2 PERM on 02/21/11 and it is approved today. What a relief.

Now we have 6 months to make sure we do not make any mistake again in I-140.

Belle, JoeF, other Gurus, Please advice why do we have to wait for the company tax papers for the year ended in Feb-2011? Is there a work around?

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Joe.F Advanced Member

Joe.F

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Originally posted by huakchusa:

We reapplied for EB2 PERM on 02/21/11 and it is approved today. What a relief.

Now we have 6 months to make sure we do not make any mistake again in I-140.

Don't wait until the last day...

Belle, JoeF, other Gurus, Please advice why do we have to wait for the company tax papers for the year ended in Feb-2011? Is there a work around?

Why not file without them? If CIS wants them, they can issue an RFE. At least the I-140 is filed. That's the important thing.

If the tax papers aren't done, adding a notice saying that they are currently processed should be good enough for the I-140 filing. Don't delay things again. And RFE is way easier to deal with than another denial.

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huakchusa Member

huakchusa

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Thanks.

But I am still missing something here. Assume I file I-140 in a couple of weeks. Assume USCIS sends an RFE to submit the tax returns and gives us say 30 to 45 days to respond to the RFE.

The major concern is that my employer's tax papers will not be ready for next 4-5 months. They will not rush their tax filing plans for my RFE. In that case how do we respond to the RFE?

Please help me understand why should we not wait for another 4-5 months and submit I-140 with tax papers. This is the exact same situation we were in last time.

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huakchusa Member

huakchusa

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Thanks Belle,

If that is the case then I will speak to my immigration attorney and begin I-140 as soon as I am back from India.

Some notes: The prior year's company tax papers shows losses. Also my prior year salary was less than the prevailing wage. This might cause an issue for ability to pay. However this year the company has made good profits which will reflect in new tax papers later this year and also my current salary is more than prevailing wage.

Does anyone have have anything to add based on the above notes?

Thanks.

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Belle Advanced Member

Belle

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I don't think your sapary vs prevailing wage thing is even relevant, primarily, because the company has to pay a certain wage (and not prevailing, but the one stated in your I-140) only after the green card is approved. When I filed I-140 for my company, my actual salary information was not even in the filing.

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  • 4 months later...
huakchusa Member

huakchusa

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Belle, JoeF,

Thanks for your response. Here is my understanding of the complete process.

Before applying for PERM, employer obtains prevailing wage information for the job. Then PERM is filed and after the approval or PERM, the I-140 is filed. The wage mentioned on PERM as well as I-140 should be >= prevailing wage.

Now why are we worried about tax papers?

Employer needs to prove that they are capable of paying the employee the wage mentioned in I-140 after the GC approval. There are multiple ways to prove this.

1) Tax returns or audited P/L statements for the PERM filing year should show profit >= wage mentioned in I-140.

or

2) Tax returns or audited P/L statements for the PERM filing year should show net assets >= wage mentioned in I-140.

or

3) If the company has more than 100 employees then a simple letter from accounts stating the profit/net-asset numbers should work.

or

4) Sometimes company's bank statements may work.

or

5) The candidate is currently employed with the petitioning employer and is being paid the salary >= wage mentioned in I-140.

In our case options-1 and 2 will not work because the tax papers are not ready and neither the audited P/L statements. Option-3 will not work because my employer has < 50 employees. My employer may not be comfortable in sharing bank statements. So Option-4 will not work. Option-5 is the only option that will currently work for us.

Since the PERM is expiring by end of this month (August-2011), we have filed the I-140 last week and received the receipt notice. We used regular filing so USCIS can take their own sweet time and the tax papers can get ready by then. Just in case they send an RFE for tax papers we will be ready with employer tax papers.

Just trying to be careful. Made one minor mistake last year and we had to go through so much pain to redo everything.

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