Once a Labor Certification has been certified by the U.S. Department of Labor, the sponsoring company can move forward with filing the I-140 petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the prospective employee. As part of the I-140 petition, USCIS requires that the company submit supporting evidence demonstrating that it has the “ability to pay” the proffered wage (as specified on the labor certification) to the employee. The company should be able to demonstrate their “ability to pay” from the date that the labor certification is submitted to the Department of Labor (referred to as the priority date) until the employee receives their permanent residence.

 Pursuant to 8 CFR 204.5(g)(2), evidence that the petitioning company should submit to demonstrate that it has the ability to pay should include:

 1.     Annual reports; 

2.     Federal Tax returns; and/or

3.     Audited financial statements.

Federal regulations state that USCIS should make a favorable decision regarding “ability to pay” if the sponsoring company is able to demonstrate one (1) of the following: 

1.     Net income. The company’s net income is equal to or greater than the wage that will be paid to the employee;

2.     Net assets. The company’s net current assets are equal to or great than the wage that will be paid to the employee; or

3.     Current employment of the beneficiary. The company can demonstrate that the employee is currently working for the company and is being paid the proferred wage. 

If the company is not able to demonstrate any of these elements, the company may submit additional evidence that USCIS will review at its discretion.  Additional evidence that can be included, which will be reviewed at the discretion of the immigration officer, includes profit and loss statements, bank account records, personnel records, and evidence of the magnitude of the company’s business activities. 

Considerations that may be taken into account by USCIS when reviewing the company’s business activities include: the number of years the company has been operating, the historical growth of the company, the overall number of employees, the company’s reputation within their industry, and the occurrence of any uncharacteristic business expenditures or losses. For example, if a company has had an uncharacteristic business loss due to an expansion project or some other type of temporary setback, the company can request that USCIS consider these factors.

At Abeckjerr Immigration Law PA we are skilled in preparing Labor Certifications and I-140 petitions for a wide variety of occupations. Our attorneys are available to discuss and provide further guidance for any issues you may be having related to “ability to pay”. Please contact our office today at info@abeckjerrlaw.com to set up an initial consultation.