USCIS Guidance on Analyzing Employers’ Ability to Pay Wages

U.S. Citizenship and Immigration Services (USCIS) recently issued a policy guidance regarding how it analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications. This guidance is effective immediately.

Employers seeking to classify prospective or current employees under the first, second, and third preference employment-based immigrant visa classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition. Employers must submit one of the following three initial required evidence: (1) annual reports, (2) federal tax returns, or (3) 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 updated guidance also states that an employer may submit additional evidence such as profit and loss statements, bank account records, or personnel records. Additionally, it explains how USCIS considers any 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.

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, Immigrant Petition for Alien Workers, or Form I-129, Petition for Nonimmigrant Worker. These business forms or structures are also relevant to the new commercial enterprises underlying a Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor. Specifically, the appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service, and basic tax terms. 

If you have any questions about this policy update, contact our office to set up a consultation with one of our attorneys today!