USCIS Updates Policy on I-140 Ability to Pay

On March 15, 2023, the United States Citizenship and Immigration Services (USCIS) updated its ability-to-pay guidance, which can be found in Volume 6, Chapter 4 of the USCIS Policy Manual. The new guidance from the USCIS regarding the sponsoring employer’s ability to pay applies only to form I-140 immigrant petitions filed in the employment-based first, second, and third preference categories. This change is effective immediately and applies to the affected petitions filed on or after March 15, 2023.

Employer’s Obligation to Show Its Ability to Pay

When an employer sponsors a foreign national employee for a lawful permanent residency status based on an offer of permanent employment, it must demonstrate an ability to pay the sponsored worker at least the prevailing wage, as determined by the Department of Labor (DOL). This ability must be shown starting from the priority date, which is determined by the date on which a labor certification application is filed with the DOL, and continuing to the date the foreign national becomes a lawful permanent resident. The petitioning employer, however, does not have to start paying the required wage until the sponsored worker becomes a lawful permanent resident. Generally, the employer can demonstrate its ability to pay by submitting one of the following for the required duration: audited financial statements, annual reports, or federal tax returns. If the employer has more than 100 employees, a statement from a financial officer may also suffice.

Update to USCIS Policy on Employer’s Ability to Pay

The new policy obligates the USCIS to review all relevant evidence submitted in support of the employer’s ability to pay the required wage. Accordingly, in addition to one of the three major types of evidence, the employer may submit any other evidence showing its financial strength in support of its ability to pay the required wage. USCIS provides examples of initial required evidence as well as some types of additional forms of documents. Additional documentation may include documents such as bank account statements, personnel records, various assets, credit limits, bank lines or lines of credit.

The USCIS also explains how the ability to pay analysis will be handled in certain situations, such as current employment of the sponsored employee, prorating multiple petitions for different sponsored employees and the nonprofit status of the petitioning employer. Finally, the PM provides guidance to the USCIS officers aimed at helping them to understand how different business structures work, particularly with regard to tax structure.

Conclusion

The new policy issued by the USCIS on the employer’s ability-to-pay obligation appears to provide more flexibility for sponsoring employers to provide more documentation to show the financial strength of their business to meet the law’s requirements. Further, the additional tools made available to the USCIS officers should provide a more nuanced approach to their decision-making process based on an individual business structure of each sponsoring employer.

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