My employer filed I - 140 and 485 concurrently in EB 2 category . My salary is less than prevailing wage on the labor certificate . USCIS sent NOID for ability to pay . My employer sent bank statements in response to NOID , 2012 tax returns were not ready , and USCIS denied I - 140 . My employer is saying we can file Motion to Reopen with 2012 tax returns . I want to know what's the success rate of MTR in this situation ? Does USCIS accept I - 290B with tax returns or is it waste of time and we should file a new I - 140 petition ?
Your employer really, really needs to retain an experienced immigration lawyer to review all the facts, advise them, and handle the case. Your employer can find one through http://www.ailalawyer.com.
Bank statements do not prove ability to pay, and ability to pay must be established for the entire period from the filing of the labor certification onwards.
If your employer has sufficient documentation and evidence to show it now has the "financial ability" to pay, they can file a Motion to Re-open/Re-consider - a detailed analysis and evaluation by an attorney would be advisable in this case. There are also other issues that you need to be aware of related to your status, pending I-485 etc. so you should consult an immigration attorney who is specialized in employment based immigration to discuss this further.
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