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“USCIS Releases Guidelines for Evaluating Employers’ Wage Payment Capability”


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WASHINGTON, DC- The U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance, as of today, on how to evaluate an employer’s ability to pay the proffered wage for certain first, second, and third preference employment-based immigrant visa classifications. Employers who wish to classify potential or current employees under these visa categories that require a job offer must prove their continued ability to pay the proffered wage to the beneficiary from the priority date of the immigrant petition.

The regulation mandates that employers submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. However, if the employer has over 100 employees, USCIS may accept a financial officer’s statement as proof of the employer’s ability to pay the proffered wage. The updated guidance also outlines additional evidence that employers may provide, and how USCIS evaluates any relevant evidence pertaining to the employer’s financial strength and business activities. Employers often satisfy the ability-to-pay requirement by presenting payroll records demonstrating that they paid the employee at least the proffered wage during the relevant period.


Additionally, the updated guidance includes an appendix with an overview of common business structures and forms to aid officers and stakeholders in comprehending the types of petitioning entities filing Form I-140, Immigrant Petition for Alien Workers, or Form I-129, Petition for Nonimmigrant Worker. These forms and structures also apply to new commercial enterprises underlying Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor. The appendix provides information on how different businesses are formed, their fundamental characteristics, the various tax forms each organization files with the Internal Revenue Service, and basic tax terms.

This guidance, contained in Volume 6 of the Policy Manual, takes immediate effect upon publication and applies prospectively to petitions filed on or after that date.

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