Most of our clients have Ph.D. degrees, Master’s degrees or at least Bachelor degrees. They work in research, teaching and professional positions requiring advanced academic credentials and experience. They retain us for their EB-1(a), EB-1(b), NIW and PERM under EB-2 or EB-3. Our firm does, however, assist a small group of aliens who are disadvantaged and even some without legal status in the U.S.

While we enjoy the professionalism involved in working with our highly-achieved clients, the successful outcome of the immigration process for the disadvantaged group sometimes offers an extremely emotional feeling of achievement because we can see our efforts bring significant changes to the lives of these families. A recent approval of an immigration petition for an undocumented skilled worker who is a chef at a restaurant in Texas serves a prime example of this type of rewarding case.

Mr. Perez and his family crossed the US/Mexico border in the late 1990’s without legal documents. Since they had first arrived in the US, Mr. Perez’s two children had been attending school and while he did not speak English at all, Mr. Perez and his wife had worked hard to establish themselves and start making the US their home. Because of his hard work, he had been able to continue working as a chef in Texas and find an employer who was very supportive of his immigration petition.

In April 2001, Mr. Perez’s employer, a restaurant in Texas, filed a Labor Certification under the EB-3 skilled worker category through our firm. Despite Mr. Perez and his family’s illegal status in the US, it was still possible for them to begin the immigration process because of a Section 245(i) exception in immigration law that would allow them to adjust their status once the Labor Certification and I-140 petition were approved. Because of the LIFE act (Legal Immigration Family Equity Act), the 245(i) exception allowed some aliens who were out of status, who entered the US without inspection, or who had violated the terms of their status to apply for adjustment of status after their immigration petitions were approved provided a labor certification application or I-140 petition had been filed on their behalf on or prior to April 30, 2001 and the individual was physically presented in the US on December 21, 2000. The exception allows 245(i)-qualified aliens and their family members, as long as they are otherwise qualified, to adjust status by paying a $1,000 penalty.

Prior to the implementation of the current PERM system, Labor Certification through the traditional track took around 6 years for approval. In Mr. Perez’s case, because of the time required for labor certification, unexpected obstacles surfaced during the I-140 immigration petition. Since the case had been pending for such a long time, the restaurant experienced several business fluctuations.

Because of this, despite everyone’s best efforts, in January 2008, the USCIS sent a request for more information requesting that the petitioning employer demonstrate its ability to pay the offered wage as determined by the Labor Certification process. Though it had met this requirement for five of the past six years, there was a single year where the petitioning employer’s net income as shown on its tax returns did not cover the offered wage. During one year, due to the restaurant shareholders’ arrangement on depreciation issues, the net asset reflected in the company’s tax return appeared to be lower than the salary offered to Mr. Perez. According to the I-140 ability to pay rule, the petitioning employer has to maintain the ability to pay by demonstrating that the business has already paid the offered salary, or either the employer net income or the net assets have been in excess of the offered salary during the entire Labor Certification and I-140 process. The in-charge attorney helped the restaurant prepare an RFE response, including a letter from a certified public accountant to show that, despite what was shown in the tax return, the restaurant was financially sound and did indeed have the ability to pay for the year in question. For details of the “ability to Pay” rule, please refer to another article listed at the end of this article.

Yet even after the RFE, the I-140 on behalf of Mr. Perez was denied. In the decision letter, the USCIS officer wrote that even with the letter of explanation from the CPA, the employer had not proved it had the ability to pay in that year. It was an extreme disappointment for Mr. Perez, his family, his employer and the attorney as the family’s hopes for the future had been depending on the immigration petition.

The consequences of the denial were immense. The pending adjustment of status applications for Mr. Perez and his family (which were concurrently filed with I-140) were denied because they were based on the Mr. Perez’s immigration petition. This meant that while it was possible for the Mr. Perez’s employer to file a new petition on his behalf, they would have to start the entire process from the beginning. The family would lose their priority date and might have to face years of waiting for approval of the new Labor Certification and for an available visa number during which time the children could reach 21 years of age and “age-out” of receiving benefits. A delayed process might also cause problems for the children’s education since most colleges and universities require proof of legal immigration status. As an added problem, it was possible that Mr. Perez’s employer would not even be able to use the EB-3 category, since a chef might not qualify as a skilled worker under the new PERM labor certification process. Note, for more information about “Age-out”, please visit our website at http://www.hooyou.com/ageout/index.html

However, at the persistence of the in charge attorney and Mr. Perez’s employer, it was decided that an appeal would be submitted to USCIS. With the legal guidelines from the attorney, the CPA prepared a new, more extensive letter which presented a different theory with a more complete argument and accounting principles. In its original letter regarding Mr. Perez’s case, the CPA had incorrectly classified some of the restaurant’s debt as short-term rather than long-term liability. The CPA admitted its mistake made in previous letter and modified the tax returns with solid circumstance evidence from tax returns of later years. If this was taken into consideration, the restaurant would be able to prove it had the ability to pay. With this new evidence, our attorney prepared an extensive appeal brief in support of the appeal, which detailed the argument and discussed the new evidence. Everyone involved worked diligently to prepare a complete and compelling appeal, and finally on the last day possible our firm rushed Mr. Perez’s appeal to FedEx minutes before it closed.

And less than a month later, on June 19, 2008, Mr. Perez’s employer received an approval notice for Mr. Perez’s EB-3 petition. USCIS approved the case without forwarding the appeal to the Administrative Appeal Unit as the USCIS has the discretion to consider any appeal as a motion to reopen/reconsider; if USCIS believes that the appeal documents satisfy the approval criteria, it may approve the appeal without going through the whole appeal review process. Fortunately, this procedure applied to Mr. Perez’s case and it saved many months of anxiety and waiting for Mr. Perez, his family, and Mr. Perez’s employer.

After receiving the I-140 approval, our office made a call to USCIS to follow up on the previously denied I-485 cases. The USCIS representative informed us that the whole family’s I-485 adjustment of status cases had been reopened after the I-140 approval and they would process the cases shortly.

The I-140 approval came shortly before July 4th, 2008 and our firm is sure that when Mr. Perez’s family enjoys the fireworks this year, they will do so with a completely different feeling with the knowledge that they are on their way to making America their permanent home. We wholeheartedly share their joys as they are one step closer to realizing their American Dream.

Our co-managing attorney, Jian Joe Zhou, was the in charge attorney for the case. Many other team members at Zhang & Associates, PC contributed to the success of the outcome.

Related article:

Employer’s “Ability to Pay” and Revitalizing an I-140 Petition:
http://www.hooyou.com/news/news101907case.html

*In order to protect our client’s privacy, all identifying information has been changed.
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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, PC.
Houston ∙ New York ∙ Chicago ∙ Austin
Tel：1-800-230-7040, 713-771-8433
Email: @hooyou.com">info@hooyou.com
website：http://www.hooyou.com