An employer filing an Immigrant Petition for Alien Workers (Form I-140) must establish that the job offered to the beneficiary is realistic. The petitioner’s ability to pay the proffered wage indicated on Form I-140 is one of the essential elements in evaluating whether the job offer is realistic.
Accordingly, for immigrant petitions that require an offer of employment, the employer must demonstrate its continuing ability to pay the required wage as of the priority date through the time the beneficiary becomes a permanent resident.
Many employers satisfy the ability to pay the requirement by submitting the initial required evidence, including the petitioner's annual reports, federal tax returns or audited financial statements for each available year from the priority date, together with payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage.
For our corporate clients, such as healthcare institutions, educational organizations and multinational companies, it is generally simple to demonstrate financial ability to pay by submitting audited financial statements, federal tax returns or annual financial reports. However, our law firm also helps other I-140 petitioners who are sole proprietors, individuals and household employers. For these I-140 petitioners, USCIS tends to review their I-140 petitions with a different and sometimes higher standard, requiring additional documentation.
Therefore, we submit more relevant documents to establish these petitioners' financial strengths and the significance of their business activities. We routinely submit the petitioners':
- Bank Account Statements: In the limited cases where USCIS may consider the personal assets and liabilities of an owner of the petitioner (for example, petitions filed by sole proprietors, general partners or other natural persons), bank account statements may be probative of the petitioner’s ability to pay the proffered wage.
- Personal Records, including any corroborating evidence of an employee's dates of employment and salary, and the petitioner's number of employees and overall payroll.
- Income and Assets: For sole proprietors and individual employers of domestic workers, USCIS considers the employer’s adjusted gross income, minus their personal expenses, when determining net income and their personal liquid assets minus any financial encumbrances on those assets, when determining net current assets.
- Credit Limits, Bank Lines, or Line of Credit: These documents will demonstrate a petitioner’s access to credit, may establish a baseline of creditworthiness and, under the totality of circumstances, may be considered as one piece of evidence in consideration of whether the petitioner has the ability to pay the proffered wage.
- For individual I-140 petitioners, USCIS also considers other evidence such as real property evaluations, stock option account statements, monthly expenses, W-2 copies and a personal statement regarding their financial ability to pay the proffered wage to the beneficiaries.
- Try to give the USCIS adjudicator a clear picture of the individual or household income and expenses through the evidence provided.
Further, USCIS released updated policy guidance concerning the assessment of an employer's ability to pay the proffered wage for specific employment-based visa classifications in March 2023. This new policy aims to formalize existing USCIS practices while introducing some new documentary requirements, generally leaning in favor of employers filing Form I-140 (the Immigrant Petition for Alien Workers). It emphasizes a broader "totality of the circumstances" approach to adjudication. The guidance clarifies long-standing ambiguities and provides more employer-friendly instructions to adjudicators, especially in complex cases where ability to pay may have previously resulted in denials.
Key points in the new guidance include (and it remains to be seen how this guidance will affect sole proprietor, individual or household employers):
- Encouraging adjudicators to adopt a more positive "totality of circumstances" approach when ability to pay is unclear.
- Specifying that initial evidence of ability to pay must include federal tax returns, annual reports or audited financial statements.
- Allowing larger companies (with 100 or more employees) to submit a letter from a financial officer attesting to the ability to pay, with USCIS reserving the right to issue RFEs on a case-by-case basis.
- Accepting a combination of "poor" tax returns and a "better" unaudited financial statement as evidence of ability to pay.
- Providing flexibility for prorating proffered wages and net income for the year in which the priority date falls.
- Allowing the use of a subsidiary's financial data from its parent company's documents, provided it is detailed separately.
- Formalizing the "Matter of X" decision, permitting a combination of W-2 wages and company income/assets to meet the required ability to pay.
- Simplifying company-wide ability to pay demonstrations for immediate I-140 filings.
- Recognizing additional "totality of circumstances" factors, including bank account statements, personnel records, credit limits, gross sales, total wages paid and business structure changes.
It remains to be seen how this guidance will truly affect sole proprietor, individual or household employers embarking on the green card process, but the focus on the “totality of the circumstances” is definitely an improvement regardless of the size of the petitioning employer.
Vivien Li practices employment and family-based immigration law as an Associate Attorney at Garvish Immigration Law Group. vli@goimmigrationlaw.com
Elizabeth L.A. Garvish founded Garvish Immigration Law Group, LLC in 2011 with the mission to be the "Happiest Law Firm in America." In June 2022, Elizabeth was recognized as a Legal Innovator at the Daily Report’s Georgia Legal Awards and as one of Georgia's Titan 100. She is ranked in the 2023 Chambers USA Guide and was included in the 2023 LawDragon Inaugural 100 Leading Immigration Lawyers Guide. Elizabeth is a frequent speaker and presenter on U.S. immigration topics around the world. She is an active member of the American Immigration Lawyers Association (AILA), serving on various national committees as well as serving as the Past Chair of the Georgia-Alabama Chapter of AILA. egarvish@goimmigrationlaw.com
