• by Santhosh Rao

OVERVIEW

As of January 5, 2024, USCIS has implemented policy guidance on Ability to Pay requirements with immediate effect.

The guidance emphasizes that, in most cases, Employers aiming to categorize potential or existing Employees under the first, second, and third preference employment-based immigrant visa categories, which mandate a job offer, must exhibit their Ability to Pay the proffered wage to the Beneficiary from the Priority Date of the Immigrant petition until the Beneficiary attains Lawful Permanent Residence (“green card”).

It also clarifies how USCIS will review an employer’s Ability to Pay when a Beneficiary whom they have sponsored changes employers under the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) while the I-140 is pending.

Following are the highlights of the policy guidance:

1. Petitioner must include their Federal Tax Returns, Annual Reports, or Audited Financial Statements for each year from the Priority Date as Primary Evidence of their Ability to Pay.  A US entity with 100 or more workers can present their CFO’s letter attesting to their company’s Ability to Pay
2. Ability to Pay assessment includes reviewing current employee salaries, confirming Petitioner’s capability by ensuring their Net Income equals or exceeds the proffered wage over the relevant period, and considering Net Current Assets (the difference between current assets and liabilities)
3. The petitioner can seek a proportional adjustment of the proposed salary for the relevant portion of the priority date year. When considering such requests, USCIS excludes a full 12 months of net income if the period is less than a year. If there is evidence of income or payment covering the time after the priority date, USCIS may prorate the salary accordingly. Moreover, USCIS might consider the petitioner’s net current assets at the end of the priority date year for the adjusted wage.
4. Occasionally, USCIS might ask a sponsoring employer to demonstrate their Ability to Pay the proffered wages for all immigrant visas filed, covering each of those beneficiaries and for each year starting from the Priority Date of the instant petition under review. This can be achieved by submitting documentation like W2 forms, Miscellaneous Income records, State Wage and Withholding Reports, Pay Stubs, for each Beneficiary
5. Even Nonprofits entities that are tax-exempt, must submit annual reports, audited financial statements, or financial officer statements to establish their ability to pay
6. Additionally, to show the ability to pay, USCIS may check Petitioner’s bank statements, employee records, income and assets of other entities, review credit limits and lines, and consider factors like gross sales or revenues.

If the employer submits Form I-140 and the sponsored worker simultaneously applies for adjustment of status, the worker can switch to a new employer after the adjustment of status application has been pending for more than 180 days. In such circumstances, USCIS will only consider the information available at the time of filing when determining the ability to pay. USCIS reviews any initial evidence of ability to pay submitted with the petition to determine whether the petitioner established its ability to pay the proffered wage from the priority date until the filing date of the petition under review.

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