Dear Atty. Lou,
I am a software engineer for a US consulting company. My H1B visa reached its sixth year and will expire in June 2011. A labor certification was filed by my employer last year. This application for labor certification was audited by the Certifying Officer. After responding to the audit, the labor certification application was denied.
The reason for the denial of the petition is that my employer has no financial ability to pay the required wage as stated in the application for labor certification. My company has sufficient income in the past. But at the time the labor certification was filed, the company’s tax returns show a taxable income of only $10,000 and after deductions it shows a negative amount. This negative figure resulted in the findings by Department of Labor Certifying Officer that the company has no ability to pay the required wages and therefore denied our application.
My employer has always paid me the correct wages whenever I am assigned to different companies to work. I do not understand this finding of the Certifying Officer. What is now the effect of this denial of my labor certification? Will I still be allowed to extend my H1B?
S. Engineer
Dear S. Engineer,
It is a reality that companies in certain industries actually suffer from financial loses as a result of the downturn of the economy. While you mention that your wages are being appropriately paid, there are some specific legal requirements that must be met before an application for your labor certification is approved.
Your labor certification application is part of the immigrant visa process and that the petitioning employer must attest to certain conditions of employment which includes the fact that it has “enough funds available to pay the wage or salary offered the alien” as per 20 CFR § 656.10(c)(3). What this means is that the Department of Labor will determine whether there is enough money available to guarantee the foreign national’s salary.
Most of the time the documentation requested to show proof of ability to pay includes but are not limited to the following: state payroll tax documentation; bank statement for the current or latest profit and loss from employer’s accountant; federal income tax statements; listing of current employees and their job titles.
From such documentation, the Department of Labor will determine whether there is ability to pay. In your case, a negative figure after deductions on your employer’s tax return is not sufficient proof of ability to pay and the Certifying Officer was right in its denial of the application pursuant to the pertinent regulations.
Your professional working visa may not be extended to its 7th year unless there is a Petition for Immigrant Visa or I-140 that is filed. In this case, your petition for I-140 may not be filed without a labor certification. Your option is to determine whether it is possible to change your status to a different nonimmigrant category. This is a case to case basis depending on the particular circumstances of the H1B employee. Otherwise, you may want to consider returning to your home country for one year and file for another H1B should you have another US employer who will petition you again in the future.
I hope this information is helpful. Good luck.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
