I 140 Denied , New PERM Application


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EB 2 Application Timeline:


PERM Application Filed: 03/25/2013

PERM Application Approved: 11/12/2013

I-140 Application Filed: 04/17/2014

NOID Received: 09/18/2014

NOID Response: 10/01/2014

I-140 Denied: 12/23/2014


NOID Detail,USCIS raised concern for following points:


Ability to Pay:


My company is startup company and making losses from last 2 years as we are investing in building our product. Company is running on investors money. My company submitted all the required financial documents and USCIS concluded that the company's net income or asset is not equal to or greater the wages offered.


My priority date was 03/25/2013, in 2013 my salary was $5000 less than what was the prevailing wage mentioned in PERM application but in 2014 my salary was slightly higher to prevailing wages mentioned in PERM application.





I submitted the affidavit from my previous company's supervisor. USCIS objected to that saying that we did not provide primary and secondary evidence that my previous company does not provide detail experience letter. We provided the email correspondence and other evidence that company does not provide the detail experience letter. We also provided w2/paystub for 4 years from my previous company.





1: My employer is filing new PERM application for me , there is no change in company's financial information but this time we will have salary more than prevailing wages starting from the priority date. Is this enough for Ability to pay concern raised by USCIS ? What else a startup can do to show the ability to pay?


2: We are planning to file AAO  for denied I 140, does open AAO would have any impact of new PERM application and if approved on new I140 application ?


3: I have H1B valid till 04/26/2016, will I be eligible to file for one year extension based on PERM application filed by 04/25/2015 ?


it would be great help ,if you can provide any relevant information



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Does the company have a lawyer handing this? If not, they should get one.

One of the things for a startup that USCIS wants to see is a business plan that shows the road to profitability.

It is certainly possible to get a GC through a startup, if the startup has enough VC money and a decent business plan.

A good lawyer can guide the company on what they need to show.

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An existing appeal has impact on a new I-140. It is based on personal experience. The law states that Appeal and new petition are independent if the new application is for a different labor. Also once the appeal is adjudicated, the pending application does not get picked up automatically, it took 12 months for me .


The above said, the current AAO timings are much better than it used to be around 2 years ago . They are all current i.e in the 6 months range for decision.


Since your new PERM is going to take sometime for to be approved, your filing of appeal now should not be an issue.

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