Requirement to Prove Ability to Pay in an I-140 Petition

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 Alien Worker, filed on the I-140 form. One of the essential aspects of the I-140 is the requirement that the sponsoring employer demonstrate an ability to pay (ATP) the proffered wage. This requirement can be a challenging element in some I-140 petitions. However, there are steps that petitioning employers can take to identify and address ATP concerns, and to increase the chance the U.S. Citizenship and Immigration Services (USCIS) will approve the I-140 petition.

General Ability to Pay Requirements

A petitioner or employer filing the I-140 typically must 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 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 is sufficient 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 that 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 could pay the difference between the proffered wage and the wages that were actually 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 usually raises 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 with the U.S. Department of Labor. 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.

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 of 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 preparations 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.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.

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