Murthy Takes Action : NSC on Ability-to-Pay Issues
Posted Sep 10, 2004
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It is possible, upon occasion, for attorneys belonging to the American Immigration Lawyers Association (AILA) to pose specific questions to the USCIS Service Centers or local USCIS Offices for guidance, clarification, and/or confirmation on procedures, policies, and interpretations. The Law Office of Sheela Murthy submitted two questions through the AILA Liaison to the Nebraska Service Center (NSC) for clarification regarding an employer's ability to pay the offered wage. As regular MurthyDotCom and MurthyBulletin readers will likely recall, the employer's ability to pay the prevailing wage is required for the approval of the I-140 immigrant worker petition. This matter has received heightened attention since the issuance of a USCIS memo dated May 4, 2004. In part, the Memo authorized examiners to deny cases based on the ability to pay without issuing any Request for Evidence (RFE). We covered this Memo extensively in our May 21, 2001 MurthyBulletin article, USCIS Memo on Ability to Pay, available on MurthyDotCom.
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Employer to Submit Ability only for Wage Difference
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The first matter on which we requested clarification was whether, under the May 4, 2004 "Yates Memo," it is sufficient, when the foreign national / beneficiary is working for the sponsoring employer and earning less than the offered labor certification wage, to simply submit evidence of the employer's ability to pay the difference. The NSC confirmed that the employer only needs to submit evidence of its ability to pay the difference between the offered wage and the wage that is already being paid by the sponsoring employer. Thus, for example, if an employer is paying an employee $60,000 per year for a position with an annual prevailing wage of $70,000, the employer will only need to submit evidence of how it can pay the extra $10,000 per year.
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Employer to Submit Ability only from Priority Date
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The second matter concerned RFEs asking for the employer's ability to pay the offered wage prior to the date the labor certification (LC) was filed, which is also the priority date in an LC case. The basic requirement under law is that the employer only needs to show it has the ability to pay the required wage as of the date the job is offered, which is the date the LC was filed. We wanted confirmation from the NSC that it is sufficient to provide financial records or other documents from the date of the LC filing and relevant time periods after the LC filing and not documents dating before the priority date. The NSC confirmed our understanding but added that there may be an exception in cases where the petitioner is seeking a special exception to the general ability to pay requirements that is based on the company's historical financial track record.

We at The Law Office of Sheela Murthy and MurthyDotCom thank the NSC for its helpful guidance on these important issues. We are pleased to have obtained clarification on these important matters that should help many to obtain I-140 petition approvals.