After filing an I-140 petition on behalf of your employee it is not uncommon to receive a Request for Evidence (RFE) from USCIS requesting that you show your ability to pay the beneficiary or, in some cases, all the beneficiaries you have filed for from a requested date.
Regulations require that any petition that requires a job offer be accompanied by evidence that the petitioner had the ability to pay the proffered wage at the time the permanent labor certification application was filed and continuing until the beneficiary obtains permanent residence.
Proving the petitioner has the ability to pay the proffered wage is different from proving that the petitioner is already paying the proffered wage. A petition may still be approved if the petitioner can demonstrate its continuing ability to pay the required wage from the priority date through the time the beneficiary becomes a legal permanent resident. A petition may also still be approved even if the petitioner is not paying the proffered wage when it files the petition or if the beneficiary has not yet been employed by the petitioner.
So what does that mean? USCIS needs more information to determine that you, the petitioner, have the ability to pay the beneficiary’s offered wage from the priority date and that you will continue to have the ability to pay the beneficiary’s offered wage until the beneficiary obtains lawful permanent residence. This is easily shown by sending in tax returns, annual reports, financial audit documents, and recent pay statements as part of the response to the RFE. If your company employs 100 or more workers, USCIS will usually accept a statement from a financial officer of the organization regarding its ability to pay the proffered wage. When asked to show an ability to pay multiple beneficiaries, the petitioner should also provide relevant employee W-2s for the years in question and tax returns for the years in question.
Petitions should be approved when the petitioner can show:
- The petitioner’s net income is equal to or greater than the proffered wage;
- The petitioner’s net current assets are equal to or greater than the proffered wage; or
- The employer submits credible, verifiable evidence that the petitioner is both employing the beneficiary and has paid or is currently paying the proffered wage.
The takeaway? Ability to pay RFEs are common and should not be a cause for concern if the petitioner has the documentation necessary to prove its continuing ability to pay the beneficiary or beneficiaries.
By: Juanita Deaver
Juanita Deaver is a Staff Attorney in the I-140 and AOS Department, where she assists clients in the middle and later stages of the green card process.
Juanita earned her J.D. from South Texas College of Law Houston in May 2021. As a law-student, Juanita interned at a non-profit organization where she discovered her passion for immigration while working on family-based cases helping file I-130 petitions and I-485 adjustments of status. During her time at South Texas, she further pursued her interest in the field of immigration law through enrollment in the school’s Immigration Clinics where she worked on TPS, T visas, and DACA cases. Her experience working with families and clients in emergency situations has provided Juanita the tools and experience to provide clear and concise explanations to the seemingly daunting immigration process.
Juanita joined Reddy & Neumann as a law clerk in December 2019. While clerking, she gained valuable experience by working closely under attorneys from each of the firm’s departments on drafting successful requests for evidence, appeals, motions to re-open, and through legal research on immigration matters. Juanita understands that every case is unique and hopes to provide each client with a better understanding of the ever-changing immigration process.