Basics of I-140: Employer’s Ability to Pay Requirement

In the typical employment-based permanent residence (commonly, "green card") case, the second stage of the three-stage process is the employer's immigrant petition for its foreign national worker, the form I-140. One of the essential aspects of the I-140 is the requirement that the sponsoring employer demonstrate that it has the ability to pay (ATP) the proffered wage. This requirement can be a challenging facet of some I-140 petitions. However, there are steps petitioning employers can take to identify and address ATP concerns to increase the chance of the I-140 petition being approved by the U.S. Citizenship and Immigration Services (USCIS).

General Ability to Pay Requirements

A petitioner or employer filing the I-140 must typically prove that it can pay the offered wage indicated on the PERM labor certification. The USCIS, in making a decision on the I-140 petition, requires the employer to establish the financial ability to pay this wage starting as of the date the PERM labor was filed, which is also referred to as the "priority date". The USCIS expects the petitioner to provide financial documents that evidence this ATP, generally in the form of annual reports, tax returns, and/or audited financial statements. However, certain other types of records may suffice, depending upon the circumstances.

Employee Working for Petitioning Employer is Helpful

The easiest way for a petitioner to demonstrate its ATP is through evidence that the sponsored worker has been employed by the petitioner since the filing of the PERM labor, earning a salary that is equal to or greater than the offered wage. While this is not required, W-2s and paystubs indicating that this salary has been paid since the priority date typically will be enough to establish a company's ATP. If the petitioner has not paid the offered wage since first filing the case, the employer can demonstrate its ATP through documents that prove the company's net income or net current assets were equal to or greater than the offered wage for each of the required years, or show that it can pay the wage differential between the proffered wage and the actual wage paid to the foreign national.

ATP Requirement Extends Until the GC is Approved

If the USCIS has any concerns about an employer's ATP, the agency will usually raise the issue when adjudicating the I-140 petition. However, the ATP requirement continues until the beneficiary is granted lawful permanent residence status. Therefore, although such questions are not typically raised at the I-485 (or consular processing) stage, the USCIS is technically permitted to require evidence of a petitioner's ATP until the individual's green card is approved.

Employer's Low Net Operating Profits may Cause Complications

As explained above, the ATP begins on the date the PERM labor certification is filed. Complications can arise if, during the timeframe under review by the USCIS, the petitioner suffers even a single bad year financially. Similarly, a company may be consistently earning a modest profit, but not quite enough to clearly show it could cover the beneficiary's proposed salary. This, too, could lead to problems and, potentially, denials. The NewsBrief, Murthy Success Story: Ability to Pay Established Despite Company Financial Hardships (11.Jun.2010) provides one example of how Murthy Law Firm attorneys assisted a company in successfully overcoming its ATP issues.

Employer May Need to Show ATP for all Sponsored Employees

Other related complications can arise when an employer has a large number of I-140 filings, relative to the size and financial strength of the company. In such a situation, it is common for the USCIS to ask for the company's ATP for all the sponsored foreign nationals. There are potential legal arguments to address ATP concerns that may be available to the petitioning company in these cases. The success depends upon fact-specific matters and analysis. Thus, if there is uncertainty about such matters based upon the company's financial documents, it is important to review the matter and obtain advice from an experienced immigration attorney.

Conclusion

ATP issues must be addressed upfront in order to secure an I-140 approval and ultimately allow the foreign national worker to obtain permanent residence. Anticipating ATP complications and making preparation to address such problems can go a long way toward insulating the petitioning employer and employee from difficulties and denials related to ATP requirements. Employers facing ATP concerns are welcome to schedule a consultation with a Murthy Law Firm attorney.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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