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USCIS Updates Guidance on Employer’s “Ability to Pay” Requirement

USCIS issued policy guidance to address the analysis of an employer’s ability to pay the proffered wage for adjudications of certain employment-based immigrant visa petitions.

What is the Employer’s “Ability to Pay” Requirement?

Employers who seek to sponsor prospective employees under first, second, and third preference employment-based immigrant visa classifications that require an offer of employment must submit evidence demonstrating that the employers have the ability to pay the proffered wage. The employers must demonstrate this ability at the time of the priority date and continuing until the beneficiary obtains lawful permanent residence.

As evidence of this ability, employers must submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. Where the prospective employer employs 100 or more workers, USCIS may accept a statement from the organization’s financial officer which establishes the employer’s ability to pay the proffered wage. In appropriate cases, employers may submit, or USCIS may request, additional evidence, such as profit/loss statements, bank account records, or personnel records.

What is the USCIS’ Update on the Employer’s “Ability to Pay” Requirement?

Under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), certain beneficiaries of employment-based immigrant visa petitions whose Form I-485 application has been pending for 180 days or more may change jobs or employers without filing a new Form I-140 petition (job portability). The original petition may remain valid after the beneficiary transfers (or ports) to a new job that is in the same or a similar occupational classification as the original job offer.

USCIS has updated its guidance to explain that, where the beneficiary has ported to a new employer under AC21 and the immigrant petition is pending, USCIS determines the employer’s ability to pay at the time of the priority date through time of the petition’s filing (and not until the beneficiary obtains lawful permanent residence).

Department of Homeland Security comments that to require that the original Form I–140 petitioner demonstrate a continuing ability to pay when the beneficiary no longer intends to work for that petitioner is illogical and would create an incongruous obstacle for the beneficiary to change jobs, thus unnecessarily undermining the purpose of job portability.

Visit here for the USCIS’ original announcement.

Related Blog: “Can I Change Jobs While My I-485 Is Pending?

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