afilmmaker Posted October 9, 2013 Report Posted October 9, 2013 Hi, My labor was certified with a priority date of Mar-2011. I-140 was filed subsequently, there was an RFE amid requesting company's latest tax returns etc. The lawyer responded with the same, and then after a couple of months; it was denied quoting the company's ability to pay as the reason. The denial decision was made sometime in the later half of 2012. The company waited on a few things to settle and finally decided to refile now. The lawyer now gives the following approaches and his comments about it. 1. Appeal: too long and very low success rate. So lawyer does not recommend this approach. 2. Refile I-140: Lawyer says that in order to refile I-140 using the same labor with date of Mar,2011; we will have to provide evidence that the company was able to pay the prevailing wage since Mar,2011. But, as the additional evidence the employer will provide now can only prove the ability to pay the prevailed wage only now and forward. So for this reason, lawyer does not recommend refiling I-140. 3. Increase my salary to the prevailing wage right now. Then after 6-7 months; apply for labor, and then expedite I-140 processing. He says this approach is a guaranteed approval approach because my effective salary would already meet the prevailed wage. My employer is ready to do this. The only bummer in this approach is, that I will loose my priority date of Mar,2011. The new priority date when labor will be filed would be around May-2014. I want to know what is the best choice for me. It sucks to have to loose my priority date and get a new one which pushes me back another 3 years. -Is there a possibility the refiling I-140 might work and I get to keep my priority date? -If we decide to go from scratch, is it true that by matching my current effective salary to prevailing wage and waiting for 6months would mean I140 would be easily approved. Or are there any other concerns in this approach too? -Is there any other alternative which will let me keep my current priority date?
schintala Posted October 10, 2013 Report Posted October 10, 2013 I absolutely agree with your attorney. He made good points and makes sense to me.
omshiv Posted October 10, 2013 Report Posted October 10, 2013 I absolutely agree with your attorney. He made good points and makes sense to me. Agreed. Very good points by your Attorney. Just follow their advice.
omshiv Posted October 10, 2013 Report Posted October 10, 2013 you will in no way retain the same PD...unfortunately thats the case. you can always move to a different employer and have them file immediately. Do you qualify for EB2 or EB3? You should consider yourself lucky that both your Attorney and Employer are very adjusting and good. Not everyone gets the same.
afilmmaker Posted October 11, 2013 Author Report Posted October 11, 2013 you will in no way retain the same PD...unfortunately thats the case. you can always move to a different employer and have them file immediately. Do you qualify for EB2 or EB3? You should consider yourself lucky that both your Attorney and Employer are very adjusting and good. Not everyone gets the same. Appreciate your response. I qualify for EB2. So do you any issues with approach I refiling. Does matching my prevailing wage really make the approval process guaranteed?
Attorney_15 Posted October 16, 2013 Report Posted October 16, 2013 I disagree. The answer in any good-lawyer-fashion is 'it depends.' First and foremost the critical question is what was the particular nature of the ability to pay problem? How much of a difference was there between the offered and actual wage paid? What does the tax return show? Does the company have audited financial statements? As regards, the 3 courses offered, the last is certainly a sound course even if pursuing the denied I-140. An employer ideally should be paying the worker the offered salary on the LC from the LC filing date to be able to show ability to pay with evidence of wages. As regards, an Appeal, they are generally taking in the range of 6-8 months. If different or new evidence is identifiable for the problematic period it may be worthwhile refiling the I-140. While a refiling can take a while sometimes, USCIS has indicated that if the petition refiling is still pending after 4 months, they will think about allowing premium processing on the I-140.
rag1 Posted August 11, 2015 Report Posted August 11, 2015 @afilmmaker: Hi, My I-140 is denied with same reason and I also have been told the same things by my attorney. Can you please let me know what have you done in your case. I will be very thankful to you. Please help me out as I can't think of anything right now and end up in same mess again. Here is my email ID , please share your number (reddy.r@live.com). Thank you very much for your time.
rag1 Posted August 11, 2015 Report Posted August 11, 2015 Hi, My I-140 is denied with same reason and I also have been told the same things by my attorney. Can you please let me know what have you done in your case. I will be very thankful to you. Please help me out as I can't think of anything right now and end up in same mess again. Here is my email ID , please share your number (reddy.r@live.com). Thank you very much for your time.
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