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Employer Must Show Ability to Pay When Filing I-140 Petition

When filing the I-140 Immigrant Petition for Alien Worker, evidence must be submitted to show that the prospective U.S. employer has the ability to pay the proffered wage. The employer must establish that it has the ability to pay the prospective employee from the time the priority date is set, which is the date when the labor certification is filed. If a labor certification is not required, this date is when the I-140 is filed. The employer must establish that it has the ability to pay until the time the employee becomes a permanent resident. If you have questions about ability to pay issues, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation.

What kind of evidence should be used?

Federal regulation dictates what types of evidence may be used. There are two categories of evidence, required and discretionary. Required evidence includes copies of annual reports, federal tax returns, or audited financial statements. Discretionary evidence includes profit/loss statements, bank account records, or personnel records, which may be submitted in appropriate cases or if requested by the USCIS. If a prospective U.S. employer has 100 or more workers, evidence may include a statement from a financial officer of the organization that shows the ability of the prospective employer to pay the proffered wage.

What if the employee changes to a new employer?

When an employee changes employers under the portability provisions provided by the American Competitiveness in the 21st Century Act of 2000 (AC21), the new employer is not required to establish its ability to pay when the I-485 is adjudicated. Instead, the new employer must establish that the new job is in the same or similar occupational classification as the job the employee held with the previous I-140 employer.

How does an employer prove it has the ability to pay?

There are three tests used to determine whether an employer has the ability to pay the proffered wage. The USCIS should make a favorable determination if the evidence establishes one of the following: 1) The petitioner's net income is equal to or greater than the proffered wage; or 2) The petitioner's net current assets are equal to or greater than the proffered wage; or 3) The employer submits credible, verifiable evidence that the petitioner is both employing the beneficiary and has paid or is currently paying the proffered wage. If the employer relies on the first two tests to establish its ability to pay, but it fails to provide the required evidence (annual reports, federal tax returns, or audited financial statements), the USCIS will likely issue a Request for Evidence (RFE). However, if the third test is used, and the employer provides evidence that it has actually paid the stated wage, such as W-2s or pay stubs, the case will generally be approved without an RFE. If you have questions about ability to pay issues, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.

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