On January 5, 2024, USCIS issued clarifying policy guidance related to the Service’s analysis of an I-140 sponsor/employer’s ability to pay the proffered wage.

Generally, this new policy guidance clarifies that if a sponsored individual, i.e. the beneficiary of a Form I-140, moves to a new employer through the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) through the submission of a Form I-485 Supplement J before the Form I-140 has been approved, the U.S. Citizenship and Immigration Services (USCIS) will adjudicate the petitioner’s ability to pay requirements under 8 CFR 204.5(g)(2) based solely on information and documentation available from the priority date to the date of submission of the Form I-140.

What is required for Form I-140 Approval?

Along with demonstrating the Alien possesses the requisite level of education and experience, an employer filing an Immigrant Petition for Alien Workers (Form I-140) must establish that the job offered to the beneficiary is a bona fide job, realistic opportunity; the petitioner’s ability to pay the proffered wage indicated on Form I-140 is one of the essential elements in evaluating whether the job offer is realistic.

I-140 Ability to Pay: Priority Date and Proffered Wage

As a matter of background, the vast majority of employment-based immigrant visa petitions require a Labor Certification (PERM ETA 9089) which among other things identifies the proposed or “proffered” salary, i.e. the wage offered to the Alien pursuant to the green card job opportunity.  The Labor Certification (PERM ETA 9089) also sets the “priority date” of the Green Card case; the “priority date” is set on the date of filing the Labor Certification (PERM ETA 9089) with the Department of Labor.  While the priority date has a number of important meanings, for our purposes the priority date is the date from which USCIS will make all determinations of the sponsoring employer’s ability to pay the sponsored employee’s wages. For approval of an employment-based immigrant visa petitions, the sponsoring employer must demonstrate its continuing ability to pay the Alien’s proffered wage from the priority date of the Alien’s Labor Certification (PERM ETA 9089) until the Alien obtains Lawful Permanent Resident, also known as Green Card status.

How is Ability to Pay Demonstrated?

Typically, sponsoring employers demonstrate their the ability to pay requirements at the time of filing the employment-based immigrant visa petitions (Form I-140) by submitting certain types of initial required evidence (such as federal tax returns, audited financial statements, or annual reports) along with payroll records demonstrating that, during the relevant time period in question, sponsoring employer has been paying the employee at least the proffered wage. However, in certain circumstances where USCIS does not view this initially submitted is sufficient to demonstrate this ability to pay requirement, the Service may and often does issue a Request for Evidence (RFE) requesting a more clarified or diligent demonstration of this ability to pay. Often times, a determination of ability to pay can be the sole factor enabling or preventing a company’s acquisition of highly skilled foreign talent.

What’s in USCIS’ new Ability to Pay Policy Guidance?

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) permits certain adjustment of status applicants in employment-based cases to change jobs or employers without requiring the submission of a new Form I-140 petition or obtaining a new Labor Certification. Specifically, if an Form I-485 is tied to a Form I-140 petition and the I-485 has been pending for 180 days or more, the original I-140 petition shall remain valid if the individual transfers to a new job within the same or a similar occupational classification as the initial job offer.

In cases where a beneficiary shifts to a new employer under AC21 while the Form I-140 is still in process, i.e. has not yet been approved,  USCIS will still assess whether the original I-140 petitioner meets the ability-to-pay requirement. According to AC21, when the beneficiary ports to a new employer through an I-485 Supplement J, USCIS will considers only the facts available at the time of filing when determining the ability to pay. Therefore, USCIS reviews any initial evidence of the petitioner’s ability to pay the offered wage, including responses to Requests for Evidence, Notices of Intent to Deny, or other information requests, to establish whether the petitioner demonstrated the ability to pay from the priority date until the filing date of the petition.

In essence, if an I-485 is pending for >180 days and the I-140 supporting that I-485 remains pending at the time an I-485 Supplement J is filed, USCIS will make two separate ability to pay analyses. First, USCIS will look to the ability to pay of the company who filed the I-140—let’s call them Company A. USCIS will require a demonstration of ability to pay from the priority date of the Labor Certification until the date of filing of the Supplement J by Company B. Then, USCIS will look at Company B’s ability to pay from the date of filing the Supplement J until the date of approval of the I-485.

For more information, or for a detailed conversation regarding your ability to pay issues, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy Neumann Brown PC with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy Neumann Brown PC has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.