USCIS Releases Guidance on Assessing Employers’ Wage Payment Ability

U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance (PDF, 313.21 KB) outlining the methodology for evaluating an employer's capability to pay the stipulated wage in immigrant petitions falling under certain first, second, and third preference employment-based immigrant visa categories.

For employers intending to classify potential or existing employees under these specific visa classifications requiring a job offer, it is imperative to substantiate their ongoing ability to fulfill the offered wage to the beneficiary as of the immigrant petition's priority date.

According to the pertinent regulation, employers are mandated to submit annual reports, federal tax returns, or audited financial statements for each accessible year from the priority date. In instances where the employer has 100 or more employees, USCIS may consider accepting a financial officer statement attesting to the employer's capacity to pay the proffered wage. The updated guidance elaborates on various types of additional evidence employers may furnish and elucidates how USCIS evaluates any evidence pertinent to the employer's financial robustness and the significance of its business activities. Notably, many employers satisfy the ability-to-pay requirement by submitting payroll records, demonstrating consistent payment of at least the proffered wage during the relevant period.

The update also incorporates an appendix providing an overview of common business forms or structures. This addition aims to assist officers and stakeholders in comprehending the entities submitting Form I-140, Immigrant Petition for Alien Workers, or Form I-129, Petition for

Nonimmigrant Worker. The outlined business forms and structures are also pertinent to the new commercial enterprises underlying Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor. The appendix includes information on business formation, fundamental characteristics, tax forms filed with the Internal Revenue Service, and basic tax terms for different types of businesses.

This guidance, featured in Volume 6 of the Policy Manual, takes immediate effect upon publication and is applicable prospectively to petitions submitted on or after the stated date.