Employers Must Demonstrate “Ability to Pay” Employee Through Green Card Issuance
Any petition filed by or for an employment-based immigrant, which requires an offer of employment, must be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage. A petitioner must file a fully completed Form I-140 along with initial evidence establishing its ability to pay the beneficiary the proffered wage.
A sponsoring employer would need to show the ability to pay from the time of filing the labor certification all the way until the employee receives the green card. Some employers are only able to show this by currently paying the individual at or above the proffered wage.
If the individual leaves the employer, but the job offer remains valid and the individual still intends to accept the job offer upon green card approval, then the employer needs to be able to show an ability to pay the individual by providing supporting documentation, preferably tax returns, and showing Net Income or Net Current Assets.
Evidence & Outcomes
Appropriate evidence of the proffered wage would include the employee’s W-2s and recent paystubs.
Required initial evidence, as specified under 8 CFR 204.5(g)(2), includes copies of:
(1) annual reports,
(2) federal tax returns, or
(3) audited financial statements.
The petitioner must submit a copy of at least one of these required documents. If the initial evidence does not establish the petitioner’s ability to pay, the petition may be denied. If the petitioner can meet the following circumstances, adjudicators should make a positive ability to pay determination:
(1) Net income
The initial evidence reflects that the petitioner’s net income is equal to or greater than the proffered wage.
(2) Net current assets
The initial evidence reflects that the petitioner’s net current assets are equal to or greater than the proffered wage.
(3) Employment of the beneficiary
The record contains credible verifiable evidence that the petitioner not only is employing
the beneficiary but also has paid or currently is paying the proffered wage.
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