i-140 and 245i LIFE Act backtax submission

[permresi]

What is the name of your state? California
My brother(beneficiary of ETA-750/I-140) and his sponsor got a RFE response from USCIS on the I-140 PREMIUM processing. The RFE is asking for my brother's W-2 or 1099 on his tax returns from 2001 thru 2006 (the original ETA-750 was filed on 4/30/2001 which makes him qualify under 245i if needed, and the ETA-750 was certified on 4/27/2007. The position is for EB3 VISA sushi shef).

My brother has maintained F-1 VISA status since he converted from a Tourist VISA in 2000. He does not have SS# or PIN#, no W-2 or 1099 to show. What do we need to do to get the I-140 approval?

 

[ImmigAttyLana]

Did the I-140 claim that your brother was currently working for the petitioning employer? Has he, in fact, been working for the petitioning employer? If not, how has he been supporting himself for the past 7 years while he has been in F-1 status? What is his source of funds? Is the I-140 RFE only asking for your brother's W-2 or 1099? It's not asking anything of the employer's ability to pay the stated wages?

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[permresi]

Yes Lana, USCIS asked for sponsor's ability to pay my brother also - ie., sponsor's tax returns from 2001 thru 2006, his bank stmts, his personal expenses, etc. We have the documents to submit for that. BTW, I don't know how USCIS determines sponsor's ability, but all we can do is to submit the paperwork. Sponsor is a sole proprietary owner and he averages about 1m+ gross and 170K net per year.

He will add sushi as a new menu item, so I would think it will generate more sale, which should cover my brother's wage. I can only hope that USCIS will support an individual business owner on this.

My brother never worked for the sponsor since it would be illegal to do so. As soon as the work permit is issued, the owner will hire him to add a sushi menu with a live chef.

My family, including me, helped my brother financially. He also worked on the side and earn cash by doing odd jobs -babysitting/gardening/cooking/making sushi for people/handyman work, etc.

 

[ImmigAttyLana]

Well, working on the side for cash is just as unlawful as working for any employer. I just don't know how feasible it is going to be for the USCIS to believe that for 7 years the brother has not been making any money and has just been financially supported completely by his family. Perhaps you would want to provide proof of that in response to the RFE.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[permresi]

Sure, I can try to gather some proof. It has been so long, so it won't be easy.
What about his cash earning? How do we report that? Should we get a PIN# (for
tax id) and prepare the back tax reports? What happens if we owe tax?
I don't exactly understand why USCIS is asking for the returns. To collect back taxes or to find out if he has been working illegally?

 

[ImmigAttyLana]

To find out if he has been working. It is not their job to collect back taxes; that's the job of the IRS.