Ability to pay the proffered wage in I-140 petitions
If you are a U.S. employer (Petitioner) sponsoring permanent residency for your foreign national employee (Beneficiary), then you will typically complete two steps before applying for your employee’s green card:
- File a PERM (Permanent Labor Certification) with the U.S. Department of Labor, and
- File an Immigrant Petition for an Alien Worker (I-140) with U.S. Citizenship and Immigration Services.
When filing the I-140 petition, you must prove your “ability to pay the proffered wage”. This requirement confirms that you can pay the employee the offered wage indicated on the PERM. If an employer is unable to prove the ability to pay the salary, the I-140 petition will be denied.
Purpose of the Regulation
The Petitioner is responsible for proving its ability to pay the offered wage to the Beneficiary based on guidelines issued by USCIS. Proper evidence in support of an employer’s ability to pay establishes that the company’s net income or net assets are greater than the Beneficiary’s offered salary. This must be true from the date the Labor Certification was accepted by the DOL (also known as the priority date) to the time the foreign employee was granted legal permanent resident status. Therefore, the "ability to pay" must verify net income or net assets in the past, present, and future. Because it is unreasonable for a company to hire an employee that puts their business in debt, a Petitioner that cannot prove their ability to pay the foreign worker leads USCIS officers to wonder if the Beneficiary is being sponsored to work for the company, or if fraud is involved. If the Petitioner cannot prove that it was paying, is paying, and will pay their foreign worker at least the prevailing wage indicated on the PERM Labor Certification, the I-140 Immigrant Petition will be denied and the green card process for that Beneficiary stops.
Sources of Credible Evidence
When the I-140 petition is filed, employers are required to submit at least one of the following documents to demonstrate their ability to pay: “annual reports, federal tax returns, or audited financial statements.”
In the case of an employer with more than 100 employees, a statement from a financial officer of the organization regarding its ability to pay the proffered wage is sufficient. The statement must be on the employer's letterhead confirming that the company has more than 100 employees and that it has the ability to pay the proffered wage to the sponsored employee. Alternatively, smaller companies (employing 99 or fewer employees) may submit a financial statement confirming ability to pay, along with “profit/loss statements, bank account records, or personnel records.” Audited financial statements must be prepared by a certified public accountant and accompanied by a statement from the accountant certifying that the report is based on audited figures.
If the Beneficiary is already employed by the Petitioner in a non-immigrant status (e.g. H-1B, L, TN etc.), W-2 statements and pay slips can prove that the Petitioner has a history of paying the Beneficiary the offered wage and is able to pay the salary if the green card is granted.
Therefore, the key to proving ability to pay is to have a verifiable source showing that the Petitioner’s net income or net assets are greater than the Beneficiary’s salary, or that the Beneficiary has been paid the offered wage since the priority date. In some instances, tax returns showing negative income or assets suggest that the company may face extreme financial strain in the future and never intended to pay the Beneficiary. This is usually the case for new businesses. Companies may still prove ability to pay by demonstrating that the business expects to recover from their period of loss through documents such as business plans and market analyses.
USCIS is not required to accept or ask for information confirming an employer’s ability to pay after the I-140 Immigrant Visa Petition is received. If the I-140 is received by USCIS without proper evidence, it may be denied in lieu of giving the applicant an opportunity to send additional supporting documents or respond to a Request for Evidence. If your company would like to sponsor an immigrant visa for your employee, feel free to contact our office.