USCIS Issues Guidance on Employers’ Financial Ability for Green Card I-140 Employment-Based Immigrant Visa Petitions

On January 5, 2024, USCIS issued a policy alert on establishing an employer’s ability to pay the proffered wage for certain Form I-140 employment-based immigrant visa petitions (green cards).  Employers sponsoring foreign national employees for green card status under EB-1, EB-2 and EB-3 preference employment-based immigrant visa classifications that require a job offer must show that they have had the ability to pay the wage offered on the PERM labor certification, or the Form I-140 if there is no PERM labor certification application (as with EB-1A, EB-1B , EB-1C and EB-2 National Interest Waivers), as of the priority date of the PERM or Form I-140 (which is the date of filing) until the beneficiary obtains legal permanent residency (the green card).

The employer must provide annual reports, federal tax returns, audited financial statement, and if the employer has more than 100 employees, it can instead include a letter from the chief financial officer attesting to the employer’s ability to pay the offered wage on the PERM application or Form I-140 immigrant visa petition.  USCIS may also accept secondary evidence of its ability to pay the wage, including bank statements, profit and loss statements or personnel records.

In its January 5th policy alert, USCIS states that where foreign national has filed the Form I-485 application and seeks to port to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) by filing the Form I-485 Supplement J, and the Form I-140 immigrant visa petition is pending, that USCIS will only review facts of the employers need  ability to pay the wage offered on the PERM or I-140 immigrant visa petition from the priority date until the filing of the Form I-140.

Please contact Attorney Monique Kornfeld for assistance with PERM labor certification and Form I-140 employment-based green card cases.