USCIS Issues Guidance on Analyzing Employers’ Ability to Pay Wages

The USCIS has recently issued updated policy guidance on how to review an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications. Employers must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the underlying immigrant petition.

The regulation requires the employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date.

• However, if the employer has 100 or more workers, USCIS may instead accept a financial officer statement attesting to the employer’s ability to pay the proffered wage.
• The new guidance also provides various types of additional evidence employers may submit and explains how USCIS will consider any new evidence relevant to the employer’s financial strength and the significance of its business activities.
• Many employers satisfy the ability to pay requirement by submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage. This is one of the more common strategies to satisfy the requirement.

The update also adds an appendix containing an overview of common business forms or structures to help officers and stakeholders better understand the types of petitioning entities filing Form I-140 or Form I-129. This guidance, contained in Volume 6 of the Policy Manual, is effective immediately upon publication and only applies prospectively to petitions filed on or after that date.

Source: USCIS and American Immigration Lawyers Association