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ImmIGRATION OCTOBER 01, 2021 | The Indian Eye 42

recent trends in requests for

evidence on i-140 petitions

Cyrus d. mehta, Sung-min ment cases by September the petitioning employer vailing wage” and that it BENEFICIARy’s
Baik* and Kaitlyn Box** 30, it is very likely that may receive a positive de- has “enough funds avail-
the USCIS will not be termination of this ability able to pay the wage.” 20 CURRENt PosItIoN
mployers who able to do so, and so we to pay with initial evidence C.F.R. §§ 656.10(c)(1). v. oFFEREd
have filed con- will continue to see these establishing that its net in- Accordingly, determining PosItIoN
Ecurrent “down- issues in the new 2022 come or net current assets the employer’s ability to With respect to an

grade” I-140 petitions fiscal year with respect to are equal to or greater than pay should not exceed the I-485 application, the US-
are facing an increasing pending I-140 and I-485 the proffered wage or that scope of the employer’s CIS sometimes questions
number of requests for cases. it has paid or is paying the attestation made with re- the validity of a job offer if
evidence (RFE). These proffered wage to the ben- spect to the specific job of- the beneficiary is currently
I-140 petitions were con- eficiary. fer for which certification employed by a petitioning
currently filed with I-485 REtENtIoN oF thE This seemingly unam- is sought and obtained. employer but not in the of-
applications when the PRIoRIty dAtE, biguous burden is often ap- Subjecting the employer fered position, even when
India employment-based ABILIty to PAy plied erroneously when an to the conditions of a dif- the current position falls
third preference (EB-3) Under 8 C.F.R. § employer files an I-140 pe- ferent job offer made by a within the same SOC code
date in the October 2020 204.5(g)(2), an employer tition on behalf of a foreign former employer would vi- as the offered position in
Visa Bulletin advanced filing an I-140 petition must national who is already the olate 20 C.F.R. § 656.30(c) the labor certification, with
ahead of the India em- demonstrate its ability to beneficiary of a previous- (2), which provides that only minor distinctions such
ployment-based Second pay the proffered wage “at ly approved I-140 petition “[a] permanent labor certi- as a differe job title. In such
preference (EB-2) date. the time the priority date and seeks to recapture the fication involving a specific casse, the USCIS argues
Below are some exam- is established and continu- priority date associated job offer is valid only for that the employer failed
ples of RFEs we have ing until the beneficiary with the earlier I-140.The the particular job oppor- to establish that it would
been seeing. Although obtains lawful permanent new employer is required tunity.” It would also be permanently employ the
the USCIS is required to residence.” According to a to obtain a new labor certi- impossible for the current beneficiary in the offered
adjudicate over 100,000 policy memo dated May 4, fication, but the new I-140 employer to obtain the fi- position set forth in the la-
pending I-485 adjust- 2004, by William R. Yates, petition would ultimately nancial documents from a bor certification. But, there

receive the earlier priority prior employer. is no requirement that the
date established by the for- Furthermore, the cur- employer must offer the
mer employer. rent employer is also not PERM position to the ben-
When this retention of required to provide finan- eficiary prior to obtaining
the priority date is request- cial records from the year permanent residence. 8
ed by a new employer un- when the prior employer C.F.R. § 204.5(c) provides
der 8 C.F.R. § 204.5(e), the filed the labor certifica- only that “[a]ny United
UCSIS interprets 8 C.F.R. tion. Indeed, the current States employer desiring
§ 204.5(g)(2) to insist that employer may not have and intending to employ an
the new employer must existed when the prior em- alien may file a petition.”
show its ability to pay from ployer filed the labor certi- The Board of Immigration
a priority date that it seeks fication. Appeals has noted that “[a]
to retain, even though the It should be argued that n alien is not required to
labor certification estab- the USCIS should not con- have been employed by the
lishing the earlier priority fuse the current employer’s certified employer prior to
date was obtained with a ability to retain a prior prir- adjustment of status.” Mat-
job offer made by a for- ity date under 8 C.F.R. § 8 ter of Rajah, 25 I&N Dec.
mer employer and is not C.F.R. § 204.5(e) with its 127, 132–33 (BIA 2009).
m of claimed by the new em- ability to pay pursuant to 8 As long as the employer
provides evidence demon-
ployer as the legal basis for C.F.R. § 204.5(g)(2).
CYRUS D. MEHTA & PARTNERS PLLC
filing a new I-140 petition. The current employer strating that the beneficiary
The relevant regula- must be required to es- would be employed as set

tion does not support the tablish its ability to pay at forth on the labor certifica-

  USCIS’ interpretation. On the time when it filed the tion, the employment of the
   
­
ETA Form 9089, an em- current labor certification
€
‚   beneficiary in a different
ployer attests in the con- based upon which the I-140 capacity or position during
text of a specific job offer petition was filed, and not the pendency of an I-485
that an offered wage “will based on an earlier recap- application would not, de-
2 6th Floor spite the USCIS’ conten-

    equal or exceed the pre- tured priority date.

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