Key Points
- USCIS has issued new guidance on its analysis of employers’ ability to pay certain wages
- The policy applies to first, second, and third-preference employment-based categories
- Employers must submit one of three forms of required evidence
- Different provisions apply for companies based on size
Overview
US Citizenship and Immigration Services (USCIS) has updated the USCIS Policy Manual with new guidance on how it analyzes employers’ ability to pay wages for particular immigrant beneficiaries.
Employers seeking to classify prospective or current employees under the first, second, and third preference employment-based immigrant visa classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition.
The policy guidance applies to employers who are paying wages in first, second, and third-preference employment-based categories. It indicates that USCIS reviews all evidence of an employer’s financial situation and its business activities. Additionally, it clarifies that employers must submit one of three forms of required evidence as noted in the regulation, but they may also provide USCIS with additional evidence as appropriate.
Additionally, USCIS clarifies that employers may show that they can continue to pay the proffered wage to their workers in the employment categories noted above, beginning on the priority date of the immigrant petition.
The guidance outlines the documents the Service finds acceptable from employers, including federal tax returns, annual reports, and audited financial statements. Those items must be submitted annually starting from the employee’s priority date. For larger companies with 100 employees or more, USCIS may accept a statement from a financial officer confirming the employer’s ability to pay wages. USCIS also clarifies the additional evidence it will obtain from employers to show their financial situation and the significance of their business activities. USCIS will also generally accept payroll records from employers showing that they have paid the employee the proffered wage during the relevant period.
Along with the guidance above, which is in Volume 6 of the Policy Manual, USCIS amended the manual’s appendix with an overview of common business forms and structures for petitioning entities that are submitting a Form I-140, Immigrant Petition for Alien Workers, or a Form I-129, Petition for Nonimmigrant Worker. The updated appendix also applies to new commercial entities that are filing a Form I-526, Immigrant Petition by Standalone Investor, or a Form I-526E, Immigrant Petition by Regional Center Investor.
Looking Ahead
The guidance in Volume 6 of the Policy Manual and the appendix is effective immediately and applies to all relevant petitions filed on or after the publication date.
Written by: Lucy Halse, Content Marketing Associate, Envoy Global
Edited by: Dmitri Pikman, Supervising Attorney, Corporate Immigration Partners
Source: US Citizenship and Immigration Services (USCIS)
