Getting to the end of the Green Card Process

The Labor Certification in effect certifies that no qualified Americans are there to do the job.  Provided an employer advertises and tests the job market, and cannot find an American to do the specific job, a labor is certified.  Many employers have not found anyone in the first place, therefore they employ the beneficiary.  But that is NOT the end of the road. To get the Green card (Permanent Resident Card)

However this is NOT the end of the road. The next step is I-140. here the USCIS ascertains that the Employee has the required education, experience and training. The Employer also has to have the ability to pay the employee. And often this is where the labor certification is denied and the process ends. 

There are a lot of reasons for this. Sometimes many employees want Second Preference, especially if they were born in India or China.  However the prevailing wage for that is very high, especially if one uses a Bachelor's Degree and five years experience.  The employer may not be paying the employee that much.  And many employers take deduction and do not show net profit.

The easiest and surest way to prove that the employer has the ability to pay is either the employer pay the employee the amount of prevailing wage or the employer shows more than this amount in their net profit. There are other ways too, for instance:

The employer had some unforeseen expenses like opening a new office and took Depreciation 

The employer is an established business and routinely earned a high income, however due to a particular recession (like the 2009 housing bust) they are unable to perform in a particular year. 

Note these factors are not sure bets.  The USCIS looks at the totality of circumstances.  However all these factors needs to be discussed BEFORE filing the labor certification.  It is also a good practice to get the Prevailing Wage from the Dept of Labor before advertising, so that the process can end if the employer cannot meet the wages, or the Labor can be filed under EB-3 with lower wages instead of EB-2. 

Also the Employer has to show the ability to pay from the time of the filing of the Green card until the employee gets the green card.

Also bear in mind that the ability to pay has to be shown from the year the Labor Certification is filed. So if the employer has financial difficulty in 2012, it is better to file the labor certification in 2013.  However it is completely useless to get a labor certified if the I-140 and even the I-485 is not certified. 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information