One of the most frequent questions we receive from both employees and employers revolves around Green Card wages—specifically whether sponsoring companies must or should be paying the specified wage amount. Many individuals asking this question are already familiar with H-1B wage requirements and understand that employers sponsoring H-1B visas must pay at or above the wage listed on the Labor Condition Application (LCA). However, the same rules do not necessarily apply to I-140 petitions or Green Card sponsorships.

H-1B Wage Requirements vs. Green Card (I-140) Wage Standards

In the H-1B process, employers are required to demonstrate compliance by paying at or above the wage stated on the H-1B LCA. In contrast, for I-140 petitions and Green Card processes, the requirement is different. Sponsoring companies must demonstrate the ability to pay the wage outlined in the PERM ETA 9099 Labor Certification (commonly referred to as the PERM wage) rather than actually paying that amount.

This distinction often raises questions, so it is crucial to consider two scenarios:

1. Waiting for Green Card Approval: This includes the I-140 stage and/or a pending I-485 (Adjustment of Status).
2. Post-Green Card Approval: Once you have been granted Lawful Permanent Residence (Green Card).

Why This Distinction Matters

Once your Green Card is approved, your salary no longer holds relevance from an immigration compliance perspective. Under 8 CFR 204.5(g)(2), any Form I-140 or I-485 filed for an employment-based Green Card requiring a job offer must include evidence that the sponsoring employer has the financial ability to pay the proffered wage. This obligation persists from the priority date until the Beneficiary becomes a lawful permanent resident.

Scenario: After Green Card Approval

If you’ve already obtained your Green Card and are not being paid at or above the PERM wage, you have two options:

• Stay with the current employer at the offered wage, or
• Seek employment elsewhere at a wage you find acceptable.

Once your Green Card is approved, you have full economic freedom to work for any employer, in any role, and in any location.

Scenario: Pending I-140 or I-485 Approval

If your case is at the I-140 stage or your I-485 is still pending, the critical factor is whether the company can demonstrate the ability to pay the PERM wage. The case will not be denied simply because the company is not paying the PERM wage, provided the company meets the ability-to-pay requirement.

How Employers Demonstrate Ability to Pay

USCIS guidelines, detailed in the Yates Memorandum, outline three ways a sponsoring company can prove its ability to pay the offered wage:

1. Wages Already Paid: Demonstrating that wages paid to the sponsored employee meet or exceed the offered wage (via W-2s or wage statements).
2. Net Income: Showing net income in excess of the offered wage (via tax returns).
3. Net Assets: Demonstrating net assets exceeding the offered wage (via tax returns or financial statements).

For companies with over 100 employees, a letter from a financial officer attesting to the ability to pay is also acceptable. USCIS requires evidence for only one of these three criteria for a positive determination.

If the company cannot independently meet any of these points, USCIS may still approve the petition if the gap between the offered wage and the wages paid is covered by the company’s net income or net assets.

Why Employers Might Pay Less Than the PERM Wage

There are various reasons an employee may be paid less than the PERM wage:

• H-1B Wage Discrepancies: The H-1B wage may be lower than the PERM wage.
• Future Employment: The employer may be sponsoring an individual for a future role, meaning the employee has not yet joined the company but will do so upon Green Card approval.

It is common for employees to be paid less than the PERM wage during the Green Card process. USCIS routinely approves cases where the employer can demonstrate the ability to pay, even if they are not currently paying the specified amount.

Key Takeaways for Employees and Employers

For employees earning less than the PERM wage:

• The law focuses on the employer’s ability to pay, not on actual payment.

For employers paying less than the PERM wage:

• Ensure your tax returns, audited financial statements, or other financial documentation reflect a strong financial position to support the ability-to-pay requirement.

If you are in a situation where you are being paid less than the PERM wage, remember what is required by the law—an ability to pay rather than actually pay. If you are an employer paying less than the PERM wage, it is crucial that your tax returns and/or other financial documentation have sufficient health to cover any wage discrepancies.

For more information, or for a detailed conversation regarding your specific Green Card interim benefits issues or other potential issues arising during your Permanent Residency Process, 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, P.C. 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, P.C. 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.