Once your labor certification is approved the next step is to apply to the Immigration on form I-140.In some cases the I-485 may also be filed at this time.

Attached to the immigration forms is the approved labor certification and supporting documentation for the employee's qualifications and for the employer's qualifications.

In strong cases the Immigration will approve the case without an interview.This is quite common when the employee is working in legal status and is being paid the prevailing wage.In other cases the Immigration will set up an interview.

The employer must prove the ability to pay the employee's wages.The easiest way to prove this is to submit payroll records.However, sometimes the employee was not on payroll while the labor certification was filed. In those cases you will need evidence of income or liquid assets available to the employer.

Also in some cases you must show the actual need for the employee's services.An example is when the employer requires a foreign language.The employer must submit proof the foreign language is required.

Attached to the application forms are documents to show the qualifications of the employee.This usually consists of copies of degrees, transcripts, employment verifications, licenses, awards, etc.If a foreign language is required or if the employer has another special requirement you must submit proof that applicant has the ability.

If the employee has had a history that could cause a problem you may have to submit documents.For example if the employee has ever been arrested anywhere you will need the court documents.If they have been denied for a prior immigration benefit you might need to explain what happened.

First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".

Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. Click on the link below to view the employment-based listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Click on the link below to view the employment-based

1) The most common problem is the employer lacks the ability to pay the wage.The employee should always be paid the prevailing wage if legally possible.You are asking for trouble if you can pay the prevailing wage and you don't do it.In other cases the employer must document their ability to pay the wage very well, (tax returns, audited financial statements, bank statements, etc.).The Immigration is very strict.

2) Another common problem is the employee not documenting his prior experience well enough.The Immigration has very burdensome requirements as to what must be in an employment verification letter and the employee must meet all the requirements.

3) The employee should work for the sponsoring company as soon as possible.Once the worker obtains work authorization and then doesn't work for the employer, the Immigration will assume there isn't a legitimate job offer and your case could be denied.

4) A qualified U.S. worker applies for the job.The employer can take a close look to see if the U.S. worker can be disqualified because the worker is not able, willing, and qualified.Also the employer may be able to cure the problem by evaluating the job title, job duties, and job requirements and doing the case again.

5) The Department of Labor has said they will audit some cases for certain reasons and they will audit some cases randomly.Therefore the employer must keep their records for five years.

6) The Department of Labor has the power to force the employer to advertise again.In that case, the Department of Labor can supervise the advertising and there will be delays, additional expenses, and difficulties.How often and when this will happen is impossible to predict.

One of the most common reasons for denial of a case is the inability of the employer to prove that they had the ability to pay the wage from the start of the labor certification to the approval of the case.You must be aware of the procedure and the requirements before you start.

Immigration Procedure:

After labor certification is approved the case is filed with Immigration.At that time you must include one of the following:

• annual report, or
• signed copy of the federal tax return, or
• audited financial statement (must be audited by a CPA).

For most businesses the only practical alternative is a signed copy of the federal tax return.

Requirements

You must meet one of three tests:

• Net income:
• Corporation: The net income on the tax return, annual report, or audited financial statement must be higher than the prevailing wage.
• Schedule C: If you file 1099 then the net income must exceed the prevailing wage plus a minimum amount for the owner's income so the owner is not in poverty.See the enclosed Poverty Guidelines.These change every year.
• Net Current Assets: The business's net current assets are equal to or greater than the proffered wage.This is not easy to prove.
• Your tax return schedule L is looked at.
• If you have a line of credit that is available to be used you should provide us with the documentation.
• If you have monthly bank statements that you can provide to us they might be helpful.
• Audited financial statements are possible
• Employment of the beneficiary: If you have proof you have paid the beneficiary the prevailing wage it can be used.We will need W-2 forms, copies of pay check stubs, State payroll forms (in California it is DE 6).
• You can have a combination of the above three.

Our Procedure:

• In all cases, please provide us with a copy of your signed tax return each year until the case is finally approved and the green card is issued.
• If the employee is on payroll, please provide us with a copy of the DE 6 forms from the start of the case to the end.You can have your CPA fax them to us each month.
• If you use the Net Current Asset method you need to provide us with sufficient documentation to show you have the net current assets to pay the wage from the beginning of the case to the end (bank statements, line of credit, financial statements, etc.).