· Business Immigration Law · 5 min read
Why EB-3 I-140 Petitions Get RFEs and Denials
Most EB-3 I-140 problems trace to two showings: the employer's ability to pay and the worker's qualifying experience. Here is how each goes wrong.
An EB-3 I-140 RFE usually means USCIS doubts one of two things: that the employer can pay the offered wage, or that the worker had the required experience before the PERM was filed. The labor certification is already approved by the time USCIS sees the case, so the Department of Labor’s questions are settled. What USCIS tests is whether the employer and the worker actually match the certified job. Most Requests for Evidence, and most denials, come from gaps an employer could have closed before filing. Here is where they come from and how to answer them; our EB-3 green card petition page covers how we prepare the file.
Ability to pay the offered wage
The employer must show it could pay the wage on the PERM from the priority date onward, continuing until the worker becomes a permanent resident. The regulation asks for annual reports, federal tax returns, or audited financial statements for each year in question. Employers with 100 or more workers may instead submit a statement from a financial officer.
USCIS usually reviews ability to pay in a set order. First, did the employer already pay the worker at least the offered wage? Payroll records and W-2s answer that directly. If the worker was paid less, does the employer’s net income cover the difference? If not, do its net current assets cover it? A company that fails all three tests can still argue from the totality of its circumstances, a principle that goes back to Matter of Sonegawa, but that argument needs strong evidence of reputation, growth, and a temporary setback.
Two situations trip employers up often. A company that sponsors many workers must show it can pay all of them, not just one. And a startup with losses on its tax returns can fail the test even with plenty of cash raised from investors, unless the record explains how that capital is available to pay wages. We review the tax returns before the I-140 is filed for exactly this reason.
Experience letters that do not prove the requirement
The worker must have met every requirement of the certified job by the priority date. Experience is usually proven by letters from former employers. A usable letter states the employer’s name and address, the writer’s name and title, the worker’s job title, the dates of employment, whether the work was full time, and a specific description of the duties.
The weak letters we see most often are missing dates or hours, describe duties too vaguely to match the PERM, come from a coworker rather than a supervisor or HR, or cover experience gained after the PERM was filed. Former employers that have closed or will not cooperate are a separate problem; secondary evidence such as pay slips, tax records, contracts, and statements from former colleagues may help, with an explanation of why the primary letter is unavailable.
Experience gained with the sponsoring employer is another trap. It usually cannot count unless the earlier role was substantially different from the job being offered.
Mismatches between the PERM and the I-140
USCIS compares the I-140 with the certified ETA-9089 line by line. Problems arise when the worker’s degree is in a different field from the one the PERM requires, when a foreign degree is not equivalent to the U.S. degree the job demands, or when the job has changed since certification. A worksite that moved outside the area covered by the original recruitment can require a new labor certification. So can a substantial change in duties.
Timing matters too. The I-140 must be filed within 180 days of PERM certification. A petition filed later has no valid labor certification behind it.
After a merger or acquisition, a new company can continue a pending case as a successor in interest, but it must show it took over the relevant business and that the predecessor could pay the wage up to the transfer date. Corporate deals should include immigration review for that reason. Our post on how to sponsor an employee for a green card covers the employer’s obligations more broadly.
Responding to an EB-3 I-140 RFE or notice of intent to deny
The notice states a deadline, and USCIS does not grant extensions. Send one complete response that addresses every point in the notice, organized so the officer can find each answer. Do not send new documents that contradict the earlier filing without explaining why. If the RFE asks for ability-to-pay evidence for a year whose tax return has not yet been filed, say so and provide what does exist, such as audited or reviewed statements and payroll records.
A notice of intent to deny is more serious and gives less time. Treat it as a final chance to fix the record.
If the I-140 is denied
The employer can file a motion to reopen or reconsider, or an appeal to the Administrative Appeals Office, on Form I-290B, generally within 30 days of the decision. In some cases, filing a new I-140 is faster, if the labor certification can still support one. A denied I-140 does not preserve the worker’s priority date, which is one more reason to get the first filing right. For the full sequence of stages, see our EB-3 process step by step, and for the employer side of sponsorship our business and employment immigration page.
If your EB-3 I-140 has drawn an RFE or you want the file checked before you submit it, a consultation with Capitol Law Partners can review the ability-to-pay and experience evidence. Schedule a consultation.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.
Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.
Need help with this topic? See our EB-3 I-140 petition support page or schedule a consultation.
