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Reacting to the I-140 Request for Evidence
Posted Jun 10,
2008
©MurthyDotCom
This article was written by the attorneys of the Murthy Law Firm for
Murthy's Corporate Bulletin. If you are an employer or HR manager,
interested in the services offered by our firm, contact our
Corporate Services Manager.
©MurthyDotCom
In most employment-based, "green card" (permanent residency) cases, there
are three parts or stages. The second stage is the Form I-140 Petition
(I-140) filed by the employer with the U.S. Citizenship & Immigration
Services (USCIS). The I-140 is the sponsoring employer's petition to employ
a foreign national in a particular job as a permanent resident. It is filed
after the employer obtains the Department of Labor (DOL)'s approval of its
Application for Permanent Alien Certification for the particular job. The
DOL approval is known as a Labor Certification (LC). The I-140 constitutes
the employer's representation to the USCIS that it intends to employ the
sponsored foreign national in the job described in the LC, once that
individual is approved for permanent residence. For approval of the I-140
filing an employer must provide evidence of its ability to employ the
particular foreign national and documentation of the worker's own
credentials for the offered position. Approval by the USCIS is the
government's recognition that the sponsored worker qualifies for the offered
job and that there is a bona fide offer of employment.
©MurthyDotCom
In order to establish that there is a bona fide offer of employment, the
I-140 sponsoring employer, must prove that it has the ability to pay the
salary offered to the foreign national worker upon becoming a permanent
resident. The "ability to pay" the offered wage must be proven from the date
the underlying LC was filed with the DOL and continuing until a decision is
made on the I-140. The law provides that initial evidence of this
requirement, which must accompany the I-140 filing, may be satisfied with a
federal tax return, an audited financial statement, or an annual report that
was filed with the Securities and Exchange Commission (SEC). While the law
provides that the employer filing the I-140 must prove that it can pay the
salary offered as part of the green card case, the legal standard of proof
is a preponderance of the evidence. Thus the I-140 petitioning employer must
establish that it is more likely than not that they could pay the offered
salary during the time period in question.
©MurthyDotCom
An employer filing the I-140 will have to also provide the USCIS with
evidence proving the sponsored worker has the experience and/or education
required by the LC for the offered employment. Increasingly, the USCIS has
taken a more severe position vis-à-vis a sponsored worker’s education,
creating an additional burden that one does not encounter prior to this
point. When a foreign national wants to satisfy a job's education
requirement with a foreign degree, a credential evaluation service generally
is used to obtain an opinion about the kind of U.S. degree to which it is
equivalent. The USCIS is now taking the position that the foreign university
must be accredited, regardless of whether the credential evaluator believes
the course of study to equal U.S. baccalaureate-level education necessary to
earn a degree. Furthermore, the USCIS is increasingly particular about
opinions from credential evaluation services and will dispute their findings
based on the content itself or information produced from the government's
own research. It is important, therefore, to carefully examine both the
education of the foreign national and the qualifications of the evaluator
used to identify the U.S. degree equivalency.
©MurthyDotCom
When the offered job requires experience in order to qualify for employment,
the USCIS requires proof of this experience from the sponsored foreign
national. The evidence required by the law is a letter from the former
employer with the dates of employment, job title, job duties, and signed by
an authorized representative on company stationary. In those instances when
such evidence is not available, it is important for the foreign national to
explain its absence in the form of a sworn affidavit. In this instance, the
sponsored worker should also provide affidavits from at least two
colleagues, attesting to his period of employment and experience, as well as
"secondary evidence;" i.e. pay stubs, an offer letter, and any other
documentation generated during his employment proving his experience.
©MurthyDotCom
If the I-140 is not filed with all of the evidence needed to satisfy each
element for approval, the USCIS may issue a Request for Evidence (RFE) or
Notice of Intent to Deny (NOID). As readers of MurthyDotCom and the
MurthyBulletin learned in our May 4, 2007 article,
USCIS Regulation on Response Time for RFEs and
NOIDs, USCIS now has the authority to deny the I-140 without even
issuing an RFE or NOID. Currently, the USCIS is only required to issue an
RFE or NOID when it identifies negative or contradictory information that is
unknown to the employer that filed the I-140. In a recent case, the Murthy
Law Firm successfully challenged the USCIS denial of an I-140 petition
without issuance of an RFE or NOID. The RFE later issued by USCIS
specifically acknowledged the Murthy Law Firm's defense of its client's due
process rights where the USCIS relied upon information taken from a website
that was unknown to the employer. After reviewing the evidence in the
record, the Murthy Law Firm thoroughly researched the factual and legal
basis cited by USCIS for the initial I-140 denial and replied in detail
explaining why the only appropriate result was approval. Shortly thereafter
the I-140 was approved by the USCIS.
©MurthyDotCom
We at the Murthy Law Firm treat each I-140 petition as though it were our
only one, dedicating our knowledge, resources, and skill to provide every
client with the best possible argument in light of the law and facts. The
law governing the I-140 and satisfying its requirements to obtain an
approval can be complex and difficult, at times, but dedicated attention to
preparing a client's case for success is the most important service that the
Murthy Law Firm provides to ensure the best possible chance for approval.
©MurthyDotCom
"We know immigration matters!"
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