CASE: I-140 (EB-3)
EMPLOYER: Consulting Company
BENEFICIARY: Chinese Financial Analyst
LOCATION: New York, NY
Our client is a financial analyst from China, who is currently working at a consulting company in New York City. The company was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Economics.
After talking to our client, our firm concluded that his potential employer can petition him as a Financial Analyst. Based on our client’s educational, professional and working background as a financial analyst, our office determined that he is clearly eligible for EB-3 classification.
Prior to filing PERM labor certification, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad.
Within a week from our retention, the prevailing wage request was filed. On June 13, 2014, we filed the PERM labor certification application. Eventually, on October 31, 2014, exactly four months from filing, the PERM labor certification was approved.
Once the PERM was certified, we then proceeded with the I-140 petition filing.
Our office submitted the “ability to pay” letter for the I-140 petition application on November 26, 2014 via regular processing. We included the job offer letter, employer’s tax records, and other necessary supporting documents. Later on, we upgraded our client’s I-140 petition filing to “premium processing” by filing an I-907 form. However, on December 31, 2014, the USCIS Texas Service Center issued a Request for Evidence (RFE) for our client’s I-140 petition. According to the RFE, the USCIS requested the Petitioner to prove “ability to pay” for beneficiary’s proposed salary.
In response to that, our office showed the beneficiary’s previous and current pay stubs show that he is “currently being paid” above the proffered wage for his proposed position. According to the William R. Yates May 4, 2004 CIS Memorandum on the “Determination of Ability to Pay under 8 C.F.R. 204.5(g)(2): CIS adjudicators should make a positive ability to pay determination in any of the following circumstances:… (3) Employment of the beneficiary…”, It should be shown that “the record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid OR is currently paying at least the proffered wage…”
Our client’s recent W2 salary is NOT above the proffered wage, but a calculation of his CURRENT salary if multiplied to a yearly amount DOES. Hence we emphasized the “or is currently paying” clause from the memo. Our office filed the Response to RFE with a brief and supporting evidence to overcome the CIS’ arguments on February 6, 2015.
Eventually, the USCIS approved the I-140 petition on February 12, 2015. Now, with the approved EB-3 I-140 petition, our client can file his adjustment of status application when his priority becomes current.