Posted On: July 23, 2008

The ‘I-140 Stage’ and the ‘Ability to Pay’

The Administrative Appeals Office (AAO) recently dismissed an appeal brought by a U.S. petitioner, a convenience store. The issue of the appeal was whether or not the petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtained lawful permanent residence. The petitioner sought to employ the beneficiary permanently as a Manager. The ETA 750 was accepted on March 28, 2001, and the proffered wage was $18.00 per hour ($37,440.00 per year). In order to prove the ability to pay, the USCIS requires that a petitioner demonstrate financial resources sufficient to pay the beneficiary’s proffered wages from the time the labor application is accepted until the beneficiary attains permanent resident status. According to regulations, evidence of this ability shall be in the form of copies of annual reports, federal tax returns, or audited financial statements.

In determining whether the employer has the ability to pay, the USCIS will first examine whether the petitioner employed and paid the beneficiary during that period. If the petitioner can show that it employed the beneficiary at a salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the petitioner’s ability to pay the proffered wage. However, if the petitioner does not establish that it employed and paid the beneficiary, the USCIS will then examine the net income figure reflected on the petitioner’s federal income tax return. Net income results after subtracting costs and expenses from total revenue.

In the aforementioned case, at the time the labor was submitted, the beneficiary was not employed by the petitioner. Accordingly, the USCIS chose to review the petitioner’s net income figures. As a result, the petitioner’s federal income tax returns were insufficient to pay the beneficiary the proffered wage, therefore, the USCIS elected to review the petitioner’s net current assets. Net current assets are the difference between the petitioner’s current assets and current liabilities. To clarify, net current assets are assets that are continually turned over in the course of a business during normal business activity; they are in other words, the petitioner’s working capital. After thorough review, it was determined that the petitioner had insufficient funds to pay the beneficiary the proffered wage.

Counsel for the petitioner argued that by combining the petitioner’s net income with its net current assets, the petitioner had the ability to pay the proffered wage. However, the AAO did not accept that approach. The AAO’s view was that net income and net current assets are two different methods of establishing the ability to pay, and they cannot be combined to satisfy the ability to pay, its either one or the other. Accordingly, the petitioner had not met its burden, and the appeal was dismissed.

Posted On: July 21, 2008

Filing of Re-entry Permit Requires PHYSICAL PRESENCE

The Administrative Appeals Office (AAO) recently dismissed an appeal
brought by a foreign national who applied for a re-entry permit while outside of the Continental United States. The regulation at 8 C.F.R. § 223.2 (b) states in pertinent part that except as otherwise provided, an application may be approved if filed by a person who is in the United States at the time of application and is a lawful permanent resident or conditional permanent resident.

In the aforementioned case, the applicant filed Form I-131, Application for Travel Document with the United States Citizenship and Immigration Services (USCIS) on April 24, 2006. On July 24, 2006, a request for additional evidence (RFE) was issued asking the applicant to produce evidencing indicating his actual date of departure from the United States. The applicant replied with evidence that he had departed the U.S. on February 28, 2006. The applicant did not dispute that he was outside of the U.S. when he filed Form I-131; however, he explained that he was only attempting to extend his expired travel document.

According to the regulations, an applicant may not extend an expired travel document; they must surrender their expired travel document and apply for a new travel document with the USCIS.

Accordingly, the regulations provide no exception for the physical presence requirements at the time of filing a Form I-131. Furthermore, the AAO concluded that since the application was not filed until after the applicant had departed the U.S., the application may not be approved as a matter of law.

The MVP Law Group, P.A. strongly recommends that applicants who intend to submit any petition with the USCIS do so while they are physically present in the United States. It is not wise nor beneficial to submit a form to the USCIS while outside of the U.S. Doing so may result in a substantial loss of money, time and status.

Posted On: July 8, 2008

Dual Intent – What Does It Mean In The Immigration Context?

Many of our clients ask us why certain nonimmigrant visa categories allow individuals to enter the United States and apply for permanent residency while other nonimmigrant categories do not. The answer is “dual intent.” So what exactly is dual intent? The doctrine of dual intent states that even though a nonimmigrant must honestly demonstrate that he or she has the intent to remain in the United States to remain temporarily, he or she may have both a short term intent to leave and a long term intent to remain permanently.

Most nonimmigrant visa categories require the individual that is obtaining a nonimmigrant visa to truly have an intent not to remain in the United States. Therefore, since most nonimmigrant categories are not governed by the doctrine of dual intent, individuals entering the United States in those categories can not apply to change their status from a nonimmigrant to that of a permanent resident while in the United States. However, in the case of E, H-1, L-1, O, and P visas, the United States Citizenship & Immigration Service (USCIS), recognizes the doctrine of dual intent. Consequently, individuals who enter or are in the United States in E-1, E-2, E-3, H-1, H-4, L-1, O-1, 0-2, P-1, P-2, or P-3 status, may apply to adjust their status to that of a permanent resident.

Posted On: July 1, 2008

I applied for a green card. What is my priority date?

No matter what avenue you take towards permanent resident status (“green card”), whether it is family-based petition, employment-based petition, or diversity visa based, the priority date of your petition determines the order of visa availability for each particular category.

Priority Dates for Family-Based Petitions

For family based petitions, the priority date is established when the I-130 form (Petition for Alien Relative) is filed with the U.S. Citizenship and Immigration Services (USCIS). If an I-130 petition is denied because of ineligibility and then later resubmitted when eligible, the priority date is established at the time of resubmission of the petition. Matter of Carbajal, 20 I&N Dec. 461 (BIA 1992).

Priority Dates for Employment-Based Petitions

For employment-based immigration petitions, the priority date is set either on the date that a labor certification is filed (EB-2 and EB-3 categories require labor certification); or for categories that do not need a labor certification (EB-1, EB-4, and EB-5) on the date that the preference petition if filed with the USCIS.

Transferring priority dates from a prior employment-based petition to a subsequent new employment based petition

Employment-based priority dates in the first three preference categories (EB-1, EB-2, and EB3) are transferable within those categories. For instance, if one files an EB-3 based labor certification and has an approved I-140 (Immigrant Petition for Alien Worker) for that category, that individual can subsequently file a labor certification in the EB-2 category and request that the priority date from the EB-3 petition be retained when filing the I-140 for the EB-2 petition. However, it is important to note that priority dates are not transferable from EB-1, EB-2, and EB-3 cases to any EB-5, EB-5, and family based petitions.

Priority dates for derivative beneficiaries (Spouses/Children)

Spouses and children of the primary beneficiary of both employment-based and family-based petitions are assigned the same priority date as the primary beneficiary as long as the marriage still exists and the children are under the age of 21 pursuant to the Child Status Protection Act. However, there are some exceptions to this rule. For instance, the child of a person who marries a U.S. Citizen must be the beneficiary of a separate petition by the parent beneficiary or, where applicable, the petitioning step-parent.