Written by attorney Carl Michael Shusterman

How Does the USCIS Determine the Employer’s Ability to Pay the Offered Wage?

All employers are required to file an I-140 (Immigrant visa Petition) to classify people seeking green a card for the employment based immigrant preference categories. All such petitions filed by the employer must be accompanied by proof of the employer's "financial ability" to pay the wage offered from the time that the priority date is established until the beneficiary is granted the green card.

The immigration regulation 8 C.F.R. ? 204.5(g) (2) requires that the evidence of this ability be provided either in the form of copies of annual reports, federal tax returns, or audited financial statements. In a case where the prospective United States employer employs 100 or more workers, the USCIS may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the offered wage. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service.

The aforementioned immigration regulation does not specifically state how the USCIS will review the tax returns to determine the employer's ability to pay. On May 4, 2004, USCIS issued Yates Memorandum on ability to pay the proffered wage which detailed out the manner in which they interpret the employer's ability to pay the wage. The Memorandum states that USCIS adjudicators should make a positive determination in regards to the employer's ability to pay in anyone of the following circumstances:

(1) Net income

The initial evidence reflects that the petitioner's net income is equal to or greater than the offered wage.

(2) Net current assets

The initial evidence reflects that the petitioner's net current assets are equal to or greater than the offered wage.

(3) Employment of the beneficiary

The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the offered wage.

To determine the net current assets of the employer, one calculates the difference between the petitioner's current assets and current liabilities. A corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to or greater than the offered wage, the petitioner is expected to be able to pay the offered wage using those net current assets.

If the tax returns do not completely reflect the employer's financial ability to the pay the offered wage, USCIS does a have a discretionary look at other factors which prove that the employer has enough income and resources to continue to pay the beneficiary. This is determined on a case to case basis.

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