Successful Appeal of an I-140 Petition Denial for a Skilled Worker

Facts

Another law firm sought my help in reversing an immigrant visa petition denial for a skilled worker filed by an established restaurant chain. The denial alleged the multimillion dollar company petitioner had no ability to pay its cook’s salary (a rather common denial ground in such cases). 

But this particular case presented a highly unusual scenario. The USCIS faulted the petitioner not with low net profits or insufficient schedule L assets, but with a failure to provide its tax returns which the petitioner was not required to file under the IRS regulations. That the petitioner employed over 200 workers and provided its payroll records and the tax returns of the larger entity under whose umbrella it functioned made no difference to the USCIS.

Strategy

I had to learn a lot about disregarded corporate entities under the IRS tax code because the case turned on their tax reporting obligations. In my motion to reconsider, I argued that the USCIS cannot require what the petitioner is unable to provide because it is exempted from filing its own tax returns under the IRS regulations. And I argued that the USCIS must accept alternate evidence of the ability to pay in the form of payroll records of over 100 workers, as provided in the USCIS’s own binding ability to pay memorandum.

Result

Four months later the USCIS denied the motion and affirmed the denial, continuing to insist that the petitioner and its parent company are separate legal entities with different employer tax identification numbers and that the petitioner had to provide the tax returns it was not required to file. So I filed a second motion to reconsider forcing the service to reexamine the arguments in the previous motion that the petitioner’s payroll records should suffice for its ability to pay under the USCIS’s regulations and its own ability to pay memorandum. This time the USCIS decided enough is enough and approved the I-140 petition.

‍