Chapter 4 - Ability to Pay

A. Assessing the Petitioner’s Ability to Pay the Required Wage

The regulations require that any petition that requires a job offer be accompanied by evidence that the petitioner had the ability to pay the proffered wage at the time the permanent labor certification application was filed and continuing until the beneficiary obtains permanent residence.

Establishing that the petitioner has the ability to pay the proffered wage is different from establishing that the petitioner is already paying the proffered wage. A petition may still be approved if the petitioner can demonstrate its continuing ability to pay the required wage as of the priority date through the time the beneficiary becomes a permanent resident, even if the petitioner is not paying that wage when it files the petition, or the beneficiary has not yet been employed by the petitioner.

The evidence must be in the form of annual reports, federal tax returns, or audited financial statements.^[1] In a case where the prospective employer employs 100 or more workers, officers may accept a statement from a financial officer of the organization regarding its ability to pay the proffered wage.^[2]

In certain circumstances, the petitioner can submit or USCIS may request additional evidence, such as profit and loss statements, bank account records, or personnel records. The burden remains on the petitioner to establish its ability to pay the wage.

Depending on corporate structure, acceptable evidence includes:

• Publicly traded corporations – Annual reports are sufficient if they contain detailed financial information, such as audited financial statements issued by an independent accounting firm.

• Privately held corporations – Audited financial statements from an independent accounting firm.

• Partnerships – Audited financial statements from an independent accounting firm.

• Non-profit institutions – A letter from an inside financial officer is sufficient for large, well-established institutions. Documentary evidence of the non-profit’s financial status may be required for institutions that are not as well-established.

Sometimes companies operate at a loss for a period to improve their business position in the long run. For example, a company may not expect research and development costs on a product line to generate revenue for several years. In those instances, the documentation should fully explain the sources of funding for the entity (or unit) and the expected profit potential. Whether the petitioner can demonstrate it has the ability to pay the beneficiary the wages described in the petition depends on the specific facts presented and consideration of all of the circumstances.^[3]

Footnotes

[^ 1] See 8 CFR 204.5(g)(2).

[^ 2] See 8 CFR 204.5(g)(2).

[^ 3] See Matter of Sonegawa (PDF), 12 I&N Dec. 612 (Reg. Comm. 1967).