Providing Evidence of Ability to Pay on I-140 Immigrant Petitions:
When Does the Employer Have to Provide It and How Might the Requirement Affect Alien Workers?
Any employer who files an I-140 immigrant petition on behalf of an alien worker isrequired to demonstrate to USCIS that it has the ability to pay the wage that it is offeringto the alien. However, the time at which the employer is required to show ability to paythe wage depends on the type of I-140 classification it seeks for the alien worker.
Background: Types of I-140 Classifications
Section 203 of the Immigration and Nationality Act divides employment-basedimmigrants into five different categories of I-140 petitions. The categories are oftenexpressed as “EB1,” “EB2,” and so on, as shorthand for “Employment Based CategoryOne,” “Employment Based Category Two,” etc. They are listed in order of preference:
1. Priority workers (EB1)-
a. Aliens with extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation;
b. Outstanding professors or researchers who are recognized internationally as outstanding in a specific academic area and has requisite experience and job offerings; or
c. Multinational Executives and Managers who meet the same basic qualifications as an L-1A Manager or Executive.
2. Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability (EB2)-
For aliens who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services are sought by a United States employer.
The Attorney General may waive the job offer requirement for certain aliens when it is in the national interest to do so. Unless this National Interest Waiver is granted, a Labor Certification is required.
3. Skilled workers, professionals, or other workers (EB3)-
a. Skilled workers- Qualified immigrants capable of performing skilled labor requiring at least 2 years training or experience, not of a temporary or seasonal nature, for which qualified workers are not available in the United States
b. Professionals- Qualified immigrants who hold baccalaureate degrees and who are members of the professions.
c. Other workers- Other qualified immigrants who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
4. Certain special immigrants (EB4)-
Includes, among other groups, religious workers who would qualify under the R-1 nonimmigrant category and who also have 2 years experience in the occupation. (Note: Aliens applying in this category use Form I-360 rather than form I-140).
5. Employment creation (EB5)-
For immigrants qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise in which the alien has invested a certain amount of capital and which will benefit the United States economy and create full-time employment for not fewer people.
Labor Certifications (LC)
Labor Certifications are only required for all aliens applying for permanent residence inthe EB3 category and most aliens applying in the EB2 category. Aliens applying in EB1category would simply start by filing an I-140 petition. Aliens applying in the EB4category as Religious Workers would begin by filing an I-360 petition. Aliens applyingin the EB5 category would file I-526.
Demonstrating the Ability to Pay: Employers Who File I-140 Petitions RequiringLabor Certifications
Any employer who wishes to file a Labor Certification on behalf of a nonimmigrantemployee should be aware that at the time that the subsequent I-140 petition is filed, theemployer will be required to show that it had the ability to pay the worker the profferedwage from the date on which the Labor Certification was filed and continuing through tothe approval of the green card.
The employer should have evidence of your ability to pay the proffered wage on file priorto filing the Labor Certification. The employer should maintain that evidence until thedate on which the alien worker is granted a green card.
The “proffered wage” is the wage stated in question 12 on form ETA-750A of the LaborCertification
.Acceptable evidence of ability to pay includes any one of the following:
1. Copy of Annual Report filed with the Securities & Exchange Commission (applies only to publicly traded companies);
2. Corporate federal income tax returns; or
3. Audited financial statements.
If the beneficiary of the Labor Certification is not currently employed
The employer must provide one of the above-noted documents to show sufficient profitto pay the proffered wage from the date of the Labor Certification filing to the date onwhich the alien obtains a green card.
If the beneficiary of the Labor Certification is currently employed and not being paid atleast the wage on the Labor Certification
The employer must provide one of the above-noted documents to show that theemployer’s profit is larger than the difference between the prevailing wage and the wagepaid to the employee, from the date of the Labor Certification filing to the date on whichthe alien obtains a green card.
If the beneficiary of the Labor Certification is currently employed and is being paidequal to or greater than the wage on the Labor CertificationThe employer must provide one of the above-noted documents to show sufficient profitto pay the proffered wage from the date of the Labor Certification filing to the date onwhich the alien obtains a green card. The employer must also provide evidence of thewages paid to the alien for the entire time from the filing of the Labor Certification to thedate on which the alien obtains a green card.If the evidence submitted does not meet the above requirements, it is possible thatsecondary evidence may be used, but prior to starting the Labor Certification, theemployer should discuss the matter the attorney handling the petition.
Demonstrating the Ability to Pay: Employers Who File EB1 Preference Petitions Where No Labor Certification Is Required
Employers who file EB1 preference petitions on behalf of aliens are required to showevidence of ability to pay the proffered wage on the date on which the I-140 petition isfiled, and must continue to be able to pay the proffered wage after a green card is issuedto the alien worker. As with other types of I-140 petitions, acceptable evidence of abilityto pay includes annual reports, corporate federal income tax returns, or audited financialstatements.
Portability and Ability to Pay: Does the New Employer Have to Show Ability to Pay atthe Time that the Labor Certification Was Filed?
USCIS regulations require that I-140 employers show they had the ability to pay thealien’s wages as of the date on which the Labor Certification was filed. However, theAmerican Competitiveness in the Twenty-First Century Act (AC21) allows aliens whoseI-485 Adjustment of Status applications have been pending for over 180 days and whoseI-140 petitions have been approved to work for a new employer in the same or a similaroccupational classification prior to becoming permanent residents. The question thenarises as to whether, when an alien uses AC21 portability to change employers, the newemployer is required to show that, from the time that the first sponsoring employer filedthe Labor Certification application, it had the ability to pay the wage on the LaborCertification application.
Some USCIS adjudicators are issuing Requests for Evidence to Adjustment of Statusapplicants who have used portability, requiring them to show that their new employer hadthe ability to pay the prevailing wage on the date that the Labor Certification was filed.Since no regulations have yet been issued to interpret AC21, it is unclear whether thenew employer would be required to show provide this evidence. But in the absence ofregulations, applicants are at the mercy of adjudicator’s opinions and in the event that theAdjustment of Status application is denied on these grounds, may have to renew theirapplications in proceedings.
Nevertheless, AC21 portability provisions were put into place to prevent aliens fromentering into indentured servitude to their sponsoring employers simply because USCISadjudications are too lengthy. It would seem that if the new employer to which an alienports is required to carry a heavy burden in showing that it had the ability to pay the alienseveral years prior to the alien’s employment, the spirit of AC21 would be defeated.
USCIS Uses Information on the Internet Against Applicants for Immigration Benefits
The American Immigration Lawyers Association (AILA) reports hearing of increasinginstances in which USCIS officers used information on the internet to issue Requests forEvidence or even denial notices. There have been many cases in which officers havequestioned inconsistencies between employers’ documents filed with a petition and theinformation contained on the internet about the employer. In addition, an AILA memberreported a case in which his client’s application for immigration benefits was deniedbased on information the client had revealed on an immigration-related internet chatboard. The officer concluded based on the information the alien posted on the messageboard that the alien had committed fraud.
In light of this new trend, we recommend that clients discuss with their attorney anyinformation pertaining to them that may be on the internet.
USCIS Expands E-Filing Service
In 2003, USCIS launched an e-filing program wherein applicants for certain immigrationbenefits could file their applications over the internet. Initially customers could file onlyform I-90, Application to Replace a Permanent Resident Card, and form I-765,Application for Employment Authorization. On May 26, 2004, the following forms wereadded to the e-filing program:
Form I-129, Petition for a Nonimmigrant Worker
Form I-131, Application for a Travel Document
Form I-140, Immigrant Petition for Alien Worker
Form I-539, Application to Extend/Change Nonimmigrant Status
Form I-821, Application for Temporary Protected Status
Form I-907, Request for Premium Processing
Once applications have been filed, customers receive instant electronic confirmation thattheir applications were received. They can then schedule an appointment to visit anApplication Support Center to collect a digital photograph, signature, and fingerprints,where required. Fees are paid online with a credit or debit card or through electronictransfer of U.S. funds from their checking or savings account. Instructions for e-filingare available at www.uscis.gov.
USCIS to Introduce New EAD Cards with Enhanced Security Features
Starting in June 2004, USCIS expects to start issuing new Employment AuthorizationDocuments (EAD cards) to aliens authorized employment. The new cards will include amagnetic strip, a two-dimensional barcode, and several features that can be used in aforensic examination to determine the card’s authenticity. The cards will also be updatedto reflect that the cards are issued by USCIS and not the former INS.
USCIS Announces New Policy Regarding Issuance of Requests for Evidence (RFEs)
Ordinarily if there is a question as to the approvability of an application for immigrationbenefits, USCIS issues a Request for Evidence (RFE) to either (1) request requiredevidence that was missing from the petition; or (2) request additional evidence evenwhere all required evidence has been submitted, to make certain that the application isapprovable. Officers are required to send out the first type of RFE whereas the secondtype is discretionary. Yet in the past officers have in practice issued an RFE whenever anapplication is not clearly approvable. This practice is obviously to the benefit of aliens,since it gives them a second chance to submit information and documentation that willassist officers in approving their petitions.
Unfortunately, USCIS views the practice of issuing discretionary RFEs as unnecessaryand wasteful of resources. In a memo dated May 4, 2004, USCIS instructed its employees that where RFEs are discretionary, they should consider sending a denialnotice without RFE. If USCIS employees follow this new policy to the letter, it willresult in a much greater number of denials. In the end, it will cause a glut of appeals inthe Administrative Appeals Office, which will become backlogged.
