USCIS Releases Policy Guidance on “Ability to Pay” Requirement for Adjustment of Status Applicants Changing Employers

U.S. Citizenship and Immigration Services (USCIS) has issued new policy guidance (PDF, 322.3 KB) outlining the assessment of an employer's ability to pay the proffered wage for immigrant petitions. This applies to specific employment-based immigrant visa classifications (first, second, and third preferences), particularly in cases where the sponsored worker decides to change employers.

Employers, when seeking to categorize potential or existing employees under the first, second, and third preferences, are required to demonstrate their ongoing capacity to pay the offered wage to the beneficiary from the priority date of the immigrant petition until the beneficiary attains lawful permanent residence.

The updated guidance clarifies that if the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, transitions to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while the Form I-140 is pending, USCIS will assess the petitioner's ability to pay based on facts existing from the priority date to the Form I-140 filing. Additionally, USCIS is implementing minor technical revisions for improved clarity, readability, and overall guidance streamlining.

This guidance, found in Volume 6, Part E, Chapter 4 of the Policy Manual, takes immediate effect upon publication and is applicable prospectively to petitions filed on or after the stated date. It builds upon previous guidance issued on March 15, 2023, regarding USCIS's evaluation of employers' ability to pay the proffered wage and aligns with recent efforts to support adjustment of status applicants.

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