EB-3 Immigration Case Overcomes Salary Doubts

EB-2, EB-3,
In occupational employment (EB2/EB3) immigration, foreign employees not only meet basic requirements such as academic qualifications, majors, and work experience, but also the financial status of American companies. If they fail to meet the standards, they will be questioned about their ability to pay wages.

In occupational employment (EB2/EB3) immigration, foreign employees not only meet basic requirements such as academic qualifications, majors, and work experience, but also the financial status of American companies. If they fail to meet the standards, they will be questioned about their ability to pay wages. Zang Dikai United Law Firm (Tsang & Associates, PLC) will introduce you to a recent case:

Application category: EB-3 professionals
Applicant (US company): operating electronic spare parts, with 10 employees
Foreign employees (foreign employees): Eric is a Chinese born in Malaysia. After graduating from university, he married a Chinese wife and has two children. He hopes to apply for immigration through an American company.

Time summary:
Submit the PERM labor certification application on August 15, 2017;
January 2018 PERM approval;
Submit I-140 & I-485 applications at the same time in April 2018;
In May 2018, USCIS issued an I-140 supplementary notice (RFE) targeting the company’s salary-paying ability;
Submit supplementary instructions and materials in May 2018;
Approval notification received in June 2018.

Application difficulties:
1. Eric has been working in a US company through H-1B, but the company’s operating conditions are not as good as expected. Tax bills and financial statements have shown losses for two consecutive years. The company is also laying off employees recently. Eric is very worried about whether the company can support him to complete his green card application;
2. Eric’s actual salary in 2017 was lower than the H-1B promised salary (offered wage).

Zang Dikai’s team of lawyers summarized the main methods used by the USCIS to determine the ability of US companies to pay salaries in this case as follows:

First, if the foreign employee has legally worked for the U.S. company (such as H-1B), check the salary situation of the foreign employee paid by the U.S. company. If the salary of the foreign employee reaches the salary promised in the H-1B application, it can prove that the American company has the ability to pay the salary. In this case, Eric’s 2017 tax return and W-2 showed that the salary could not reach the level promised by H-1B.

Second, if the above methods fail to determine the U.S. company’s payroll capacity, then USCIS will then look at the U.S. company’s net income by looking at the U.S. company’s tax returns. Through the inspection of net income, it is judged whether the American company has the ability to pay the salary promised on the PERM labor certificate.

But according to corporate tax returns, the US company’s net income is not enough to pay Eric’s salary.

Another way is to look at the current net assets of US companies, but US companies do not meet this requirement.

solution:
Since the financial situation of American companies cannot be improved in the short term, Eric cannot provide more financial data. Therefore, Zang Dikai’s lawyer team focused on Eric’s H-1B salary certificate. After sorting out, it was found that Eric had asked for leave to accompany his wife back to China to visit relatives in July of the summer vacation of 2017. After deducting the salary during the leave, it was consistent with Eric’s H-1B salary. Therefore, Zang Dikai’s lawyer team instructed Eric to obtain leave records and personnel certificates, and also prepared a letter from the American company for the boss to sign to prove that there was a reason why the salary did not reach the H-1B level in 2017; in addition, Eric did not ask for leave since August Or other situations, through calculation, it can be proved that from the priority date (August 15, 2017) to the present, the salary paid by the American company to Eric has fully met the H-1B standard, which also proves the salary payment ability of the American company.

Finally, combining the data of the company and Eric, Zang Dikai’s lawyer team summarized a well-founded explanatory letter. According to the facts and regulations, although Eric’s current financial situation is not good, it still complies with the salary level of the immigration law and has the ability to provide Eric applied for a green card.

Lawyer Comments:
Lawyer Zang Dikai reminded: According to the immigration law, as long as it is applying for an immigration application, the US company must prove that the company’s financial capacity is sufficient to pay the salary of the foreign employee from the priority date. This certification is usually reflected in the company’s annual report, federal tax returns or audited financial statements. If the employee has started working for the company, this can be proven with salary. Another thing we need to understand is that the priority date is the day the Labor Department accepts the labor certification application. In this case, the PERM labor certification was filed on August 15, 2017, and the promised salary was $65,000/year.

*Related reading: [Successful Case] EB-3 technicians applied for professional positions and were approved within two weeks

*To protect customer privacy, customer names are pseudonyms.