Immigration Issues/I-140

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Question
My case is not your usual H1b with big corporate sponsorships.

After I got my MBA here in the US, I set up a company that sponsored my own H1b. The H1b got approved based on our reasoning that my work is derived on my education which was majoring in general management/entrepreneurship.

Recently, my labor certication got approved. It was filed not on PERM but on TR.

I am thinking of applying separately the I-140 (not concurent with I-485), because my wife is planning to file an F1 visa (2nd bachelors degree on Nursing) on March 2008 as our H1b will be expiring on July 2008.
 
I would like to know your thoughts on the probability of success of my I-140 being approved. What documentations should I submit to solidify/reinforce the approval ?
 
Some additional facts:

1) My company was profitable last year  but not this year (loss of $40K). My salary was $90K last year but only $65K this year around 8% higher than DOL salary.
 
2) I do not have employees but have spent a lot in advertising, purchasing from suppliers, taxes paid, which I believe contributes more to the economy than an ordinary worker has.

3) I have 2 US citizen children (if that would matter here).

Thank you in advance for your wisdom and precious time. Any advice will be very much appreciated.

Sincerely,

Bruce

Answer
Hi,

It is good that you are filing I-140 separately from I-485 for two reasons: a). your wife's F-1 will not be approved if I-485's are filed and b). in case the I-140 is denied, you would have wasted time and money on the I-485's, as the I-485's cannot be approved without I-140 approval.

The I-140 can be approved if you can show that your company is capable of paying your salary. This must be shown from the year that the labor application was filed until currently. Since the salary paid by your company is higher than the salary noted on the labor application, even a small net profit should be OK, and this is normally shown through federal company tax returns or audited annual financial statements. In most cases you can disregard the current state of the company as you will not be expected to submit the company's tax returns for 2007. If the USCIS does inquire about expected profit (or lack therefore) for 2007, assets could be important, but not advertising, purchases, or taxes paid. The # of employees is not usually important, either. Therefore, there is higher than a 50% probability that the I-140 will be approved. Having U.S. children is not relevant for I-140. Incidentally, I strongly recommend that another manager or officer or executive of the company sign the I-140 (you should not sign the I-140 petition).

Regards,
Ajay K. Arora, Esq.
www.h1b1.com

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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