1. The Process of U.S. Permanent Residency (Green Card) Petition
For an alien applicant to seek U.S. permanent residency based on approved Labor Certification, the following is the process:
1) After the Labor Certification (or PERM Labor Certification) approval from U.S. Department of Labor , The alien's employer should file Form I-140 application, Petition for Alien Worker, and also submit required evidence to USCIS.
2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status, when an immigrant visa number is available for the alien beneficiary.
3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail.
2. The Requirements and Eligibilities of Employer for Form I-140 Petition
The employers and the alien employees often neglect the distinction of issues between the DOL labor certification process and the subsequent USCIS form I-140 immigrant petition process. Because of such failure of distinction, the employers and the alien employees experience denials of form I-140 petitions after spending expenses and long time.
For the employer eligibility, most of cases have denied on the employer financial ability to pay the labor certification wage to the alien beneficiary. Since the employer is required to prove such financial ability to pay from the date of labor certification application filing (priority date) to I-140 petition adjudication, the longer the labor certification application takes, the employers and the alien employees tend to face an increased risk of I-140 denial, after obtaining the labor certification applications. The issue of employee eligibility involves primarily the definition of education and experience which are required by the employers in the labor certification applications.
Both the employer eligibility and the employee eligibility issues are usually not raised at the labor certification stage by the DOL, as the DOL perceives their job to be primarily testing the American worker labor market for various jobs. When it comes to the eligibility of the employers and the employees, the DOL and the USCIS consider that it is primarily the job of the USCIS.
3. The Requirements and Eligibilities of Employee for Form I-140 Petition
Most I-140 petitions are denied primarily on the issues of the the employer eligibility or the employee eligibility. There are some of employers whose I-140 petitions for either EB-2 or EB-3 have been denied after the approval of their labor certification applications requiring Bachelor Degree or Equivalent as educational requirement, when their alien employee did not have a single bachelor degree.
Such nightmare has been brought about by their misunderstanding of the term equivalent to mean combination of two degrees or suitable education, training, and experience, as evaluated by the foreign credential evaluation agencies.
The USCIS changed the interpretation of EB-2 and EB-3 statutory requirements, particularly the education requirement in the labor certification applications. Previously, the USCIS adopted more or less flexible policies or interpretation. Then the USCIS has adopted a restrictive and narrower interpretation of the requirements, posing a serious challenge to the eligibility of the I-140 petition for the alien beneficiaries. Accordingly, some of the labor certification applicants who filed the I-140 have lately faced denial of I-140 petitions.
The employee eligibility involves the definition of education and experience which are required by the employer in the labor certification application. This issue is often called equivalent issue, which affects Indians more than other nationalities because of the educational systems in India.
4. USCIS Adjudicator's Evaluation For Form I-140 Petition
Simply presenting evidence which relates to the Form I-140 petition requirements does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence.
If the USCIS adjudicator determines that the evidence does not meet the standard for the Form I-140 petition, the additional evidence may be requested from the petitioner, or it is called Request For Evidence (RFE).
My employer will file labor certification for me soon, and will also sponsor my Green Card application later. How to draft the labor certification carefully to avoid problems at the Form I-140 application step?
5. The Form I-140 Application and the "Ability to Pay" Issue
The employer's "ability to pay" is a requirement for the employer filing an Form I-140 immigrant petition. The petition should demonstrate that the U.S. employer has sufficient money to pay the offered wage for the alien applicant with the permanent of full-time position within the company. To approve an Form I-140 petition, the USCIS requires proof of the company's ability to pay the offered wage, starting with the labor certification filing date.
The chances of the Form I-140 application success for an immigrant visa are mainly determined at the Labor Certification step. Therefore, the labor certification needs to be drafted carefully to avoid problems at the Form I-140 application step, such as the employer's "ability to pay" issue. An alien beneficiary may get Form I-140 application success if the employer is sponsoring the Green Card application from the time the labor certification is filed.
Ability to pay means a company’s ability to pay the wage listed on the labor certification to the foreign worker. Many green card applicants are under the mistaken impression that the ability to pay calculation begins only at the time of filing the Form I-140 petition. But actually, a company must demonstrate ability to pay from the time of filing the labor certification until the alien beneficiary has adjusted his or her status and become a U.S. permanent resident.
USCIS will deny the Form I-140 petition if the employer is failed to establish the ability to pay the offered wages. If your petition is denied due to this reason, the petitioner can file a motion to reopen the case, and try to obtain the I-140 approval if there is new evidence. The following issues may indicate the employer's failure to establish the ability to pay the offered wages:
1) the employer's years of a negative revenue;
2) the employer's financial fluctuations were unusual, and reflect the overall ability of the company to meet its wage obligations;
3) the employer has an unusual set of setbacks in business and income;
4) the employer has a serious other conditions in the business.
The easiest and most preferred method to demonstrate that a company has the ability to pay, and obtain an Form I-140 approval, is for the alien beneficiary to work for the company, and be paid the wage listed on the labor application from the time of the labor certification filing.
USCIS accepts only 2 forms of evidence to show the ability to pay: 1) an audited financial statement, which are time intensive and costly to prepare, especially for smaller companies, or 2) the company’s tax returns. Either way, the net income of the company must be greater than the wage payment.
Sometimes, USCIS may send a Request For Evidence (RFE) letter sending to the Form I-140 petitioner to ask for evidence of “ability to pay all”. This means the company must demonstrate its ability to pay not just the alien beneficiary, but also the wages of all other employees they have filed I-140 petitions for. For some companies, reporting a high net income on the tax return is not usually in their best interest. This can lead to th Form I-140 being denied if the company does not report a net income high enough to cover the total of all pay gaps for all Form I-140s ever filed.
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