The United States Citizenship and Immigration Services (USCIS) has issued new policy guidance on how they will analyze an employer's ability to pay the proffered wage for certain employment-based immigrant visa classifications. The new guidance applies to first, second, and third preference employment-based immigrant visa classifications, which require a job offer. According to the new policy, employe
rs must demonstrate their ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition. To meet this requirement, the employer must submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. If the employer has 100 or more workers, USCIS may accept a financial officer statement attesting to the employer's ability to pay the proffered wage.
The updated guidance also provides details on various types of additional evidence employers may submit to demonstrate their financial strength and the significance of their business activities. Many employers can satisfy the ability to pay requirement by submitting payroll records demonstrating that they have been paying the employee at least the proffered wage during the relevant time period.
The update also includes an appendix containing an overview of common business forms or structures to help officers and stakeholders better understand the types of petitioning entities filing Form I-140, Immigrant Petition for Alien Workers, or Form I-129, Petition for Nonimmigrant Worker. This information is also relevant to the new commercial enterprises underlying a Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor. The appendi
x includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service, and basic tax terms. The new guidance, contained in Volume 6 of the Policy Manual, is effective immediately upon publication and applies prospectively to petitions filed on or after that date. Employers and stakeholders should review the updated guidance carefully to ensure compliance with the new policy.