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I-140 denied due to ability to pay. Should we file Motion to Reopen or refile I-140?

Burlington, MA |

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 ?

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Attorney answers 3


Wow. This is quite a question. What is a success rate? If the motion or appeal was filed on time on the form you just mentioned, and the evidence does overcome the concerns spelled out on the Notice of Intent to Deny, he may be right. This is my completely unscientific opinion.

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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

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.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


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.

Disclaimer: The information provided here is generalized and should not be relied upon as legal advice. This communication does not create an attorney-client relationship.

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