Dr. William:

My I-140 application was denied by NSC recently. My I-140 was denied not because of the defects in the underlying PERM certified labor certification applications, but because of the employer's financial ability to pay the proffered wage. My employer filed concurrent I-140/ I-485 application for me. Now I am not sure I should file an appeal to AAO, or I should refile I-140 application.

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Answer:

Many I-140 petitions are denied not because of the defects in the underlying PERM certified labor certification applications, but because of the employer's financial ability to pay the proffered wage. When the I-140 is denied in the context of current filing of I-140/ I-485. you can file appeal to the AAO. But on the other hand, a denial of I-140 petition does not invalidate the underlying certified labor certification application, unless it is invalidated for fraud or revocation. Accordingly, the petitioner can refile I-140 petition at any stage.

However, a single certified labor certification application cannot support two I-140 petitions when one of which supports concurrently filed I-485 application, particularly when the petition is denied and appealed to AAO. For the reason, the NSC requires that the petitioner first withdraws the denied I-140 petition and appeal which is pending at the AAO, in order to refile I-140 petition. 

So if you want to refile the I-140 petition, you should not file an appeal to AAO, or you need to withdrawn the appeal.