I-140 RFE - ability to pay - new employer

[sureshy4k]

Hello Friends,

I guess my case is not unique but I could not to find any answer/solution on the internet. Kindly help

 

Case (EB3 to EB2 porting - Emp A to Emp B):

- I have approved I-140 with Employer A with priority date of November 2009 filed under EB3 PERM. Though I was eligible for EB2, employer policy was to file only in EB3.

 

- I joined Employer B in October 2012 and filed new PERM under EB2 in December 2012. PERM was approved. Filed I-140 in May 2013 and requested USCIS to retain Nov 2009 priority date. USCIS has sent RFE asking for Employer B's ability to pay starting from November 2008, even though 2010 and 2011 company tax documents were submitted with I-140 application.

 

- My attorney is researching on how to reply to RFE

 

Question:

1. Is it a mistake that USCIS is asking for Employer B's ability to pay starting from my previous EB3 priority date even though I joined Employer B only in Oct 2012?

2. Is it a typo/mistake that USCIS is asking to show Emp B ability to pay from November "2008" even though the priority date was Novemebr "2009"?

3. How to correctly reply to RFE?

 

Thanks

[redgreenbluee]

please consult a lawyer.

 

it is best to provide the documents asked on RFE.

 

since your PD is 11/2009, uscis would want to see prior year 2008 (just like you file 2012 tax in 2013).

 

you are correct that they should be interested in checking employer B's ability to pay in reference to your join date of 10/2012.

 

regardless, if you can prove that starting from 2008 that your current petitioner (employer B) has the ability to pay your prev wage, it should not be an issue.

 

 

Hello Friends,

I guess my case is not unique but I could not to find any answer/solution on the internet. Kindly help

 

Case (EB3 to EB2 porting - Emp A to Emp B):

- I have approved I-140 with Employer A with priority date of November 2009 filed under EB3 PERM. Though I was eligible for EB2, employer policy was to file only in EB3.

 

- I joined Employer B in October 2012 and filed new PERM under EB2 in December 2012. PERM was approved. Filed I-140 in May 2013 and requested USCIS to retain Nov 2009 priority date. USCIS has sent RFE asking for Employer B's ability to pay starting from November 2008, even though 2010 and 2011 company tax documents were submitted with I-140 application.

 

- My attorney is researching on how to reply to RFE

 

Question:

1. Is it a mistake that USCIS is asking for Employer B's ability to pay starting from my previous EB3 priority date even though I joined Employer B only in Oct 2012?

2. Is it a typo/mistake that USCIS is asking to show Emp B ability to pay from November "2008" even though the priority date was Novemebr "2009"?

3. How to correctly reply to RFE?

 

Thanks

[sureshy4k]

@redgreenbluee - Thank you very much for your reply. Actually my employer is a small consulting company and they are unable to show profit or ability to pay me for those past years. According to them, they have balanced their books for those years and cannot change their tax-returns on those past years.

 

My attorney is also not very sure on how to respond to the RFE. Are there any other options for responding to the RFE?

 

Thanks in advance

[redgreenbluee]

please consult a lawyer.

 

it is best to respond with the requested document and on-time, you can file an appeal if you experienced problem with your RFE response.

 

 

@redgreenbluee - Thank you very much for your reply. Actually my employer is a small consulting company and they are unable to show profit or ability to pay me for those past years. According to them, they have balanced their books for those years and cannot change their tax-returns on those past years.

 

My attorney is also not very sure on how to respond to the RFE. Are there any other options for responding to the RFE?

 

Thanks in advance

[chakrakr]

Consult a more experienced Attorney for a second opinion  and if required persue your employer to change Attorney.  This definitely looks like a CIS error.   They have no business checking for ability to pay before PD  of Employer B  which is December 2012.