Demonstrating an employer’s ‘ability to pay’ the wage

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

Whenever an employer petitions (or sponsors) an alien for an employment-based immigrant visa (green card), the employer must demonstrate the “ability to pay” the alien’s salary from the time the case is filed until the alien/beneficiary obtains lawful permanent resident status. In other words, if an employer is going to petition a worker, the employer must prove to US Citizenship and Immigration Services (USCIS) that the employer is earning enough to afford to pay the worker’s salary.

I have posted several videos on my YouTube channel (US Immigration TV) and articles in my weekly column and website, Facebook page, etc. about petitioning workers for a green card. In fact, family members can petition other family members for an employment-based green card, including caregivers and housekeepers. However, one of the requirements is demonstrating the employer has the ability to pay the wage. If an employer cannot afford to pay the worker’s salary, then it is not considered to be a bona fide or real job offer, and the case would be denied.

But what is the “ability to pay,” and how can the prospective employer prove they can afford to pay the wage? According to USCIS regulations, evidence of ability to pay “shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. If the employer is a large company and employs 100 or more workers, a statement from a financial officer of the company that the employer has ability to pay would also be sufficient. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service.

USCIS officers can also conclude the employer has established the ability to pay the wage in any one of the following circumstances:

Net income, where the petitioner’s net income on their federal tax returns is equal to or greater than the proffered wage.

Net current assets, where the petitioner’s net current assets are equal to or greater than the proffered wage.

Employment of the beneficiary, where the employer is already employing the beneficiary and has also been paying the beneficiary at least the proffered wage.

If you are a US employer, and considering petitioning an employee through PERM or labor certification (even a relative in the Philippines), you should consult with an attorney who can evaluate your case and situation, including making sure you satisfy the “ability to pay” requirement and can otherwise assist in the processing of this employment-based green card.

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