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Policy Manual
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Book outline for Policy Manual
  • Policy Manual
    • Search
    • Updates
    • Table of Contents
    • Volume 1 - General Policies and Procedures
    • Volume 2 - Nonimmigrants
    • Volume 3 - Humanitarian Protection and Parole
    • Volume 4 - Refugees and Asylees
    • Volume 5 - Adoptions
    • Volume 6 - Immigrants
      • Part A - Immigrant Policies and Procedures
      • Part B - Family-Based Immigrants
      • Part C - Adam Walsh Act
      • Part D - Surviving Relatives
      • Part E - Employment-Based Immigration
        • Chapter 1 - Purpose and Background
        • Chapter 2 - Eligibility Requirements
        • Chapter 3 - Successor-in-Interest in Permanent Labor Certification Cases
        • Chapter 4 - Ability to Pay
        • Chapter 5 - Business Structure [Reserved]
        • Chapter 6 - Permanent Labor Certification
        • Chapter 7 - Schedule A Designation Petitions
        • Chapter 8 - Documentation and Evidence
        • Chapter 9 - Evaluation of Education Credentials
        • Chapter 10 - Decision and Post-Adjudication
      • Part F - Employment-Based Classifications
      • Part G - Investors
      • Part H - Designated and Special Immigrants
      • Part I - Family-Based Conditional Permanent Residents
      • Part J - Special Immigrant Juveniles
      • Part K - CNMI Resident Status
    • Volume 7 - Adjustment of Status
    • Volume 8 - Admissibility
    • Volume 9 - Waivers and Other Forms of Relief
    • Volume 10 - Employment Authorization
    • Volume 11 - Travel and Identity Documents
    • Volume 12 - Citizenship and Naturalization
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  2. Policy Manual
  3. Volume 6 - Immigrants
  4. Part E - Employment-Based Immigration
  5. Chapter 4 - Ability to Pay

Chapter 4 - Ability to Pay

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  • Guidance
  • Resources (17)
  • Appendices (0)
  • Updates (4)
  • History (0)

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).

Resources

Legal Authorities

20 CFR 656 - Labor Certification Process for Permanent Employment of Aliens in the United States

8 CFR 204.5(a)-(l), (n) - Petitions for employment-based immigrants

8 CFR 204.5(g)(2) - Ability of prospective employer to pay wage

8 CFR 204.5 - Petitions for employment-based immigrants

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

INA 203(b)(1), (2), (3) - Preference allocation for employment-based immigrants

INA 203(b)(2) - Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability

INA 203(b)(3) - Skilled workers, professionals, and other workers

INA 204, 8 CFR 204 - Procedure for granting immigrant status

Forms

ETA Form 9089, Application for Permanent Employment Certification (PDF)

Form ETA-9141, Application for Prevailing Wage Determination (PDF)

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-140, Immigrant Petition for Alien Worker

I-290B, Notice of Appeal or Motion

I-485, Application to Register Permanent Residence or Adjust Status

Appendices

No appendices available at this time.

Updates

Technical Update - Incorporating Existing Guidance into the Policy Manual

May 18, 2021

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 22.1 and 22.2 of the AFM, related appendices, and policy memoranda.

Affected Sections

6 USCIS-PM E - Part E - Employment-Based Immigration

6 USCIS-PM F - Part F - Employment-Based Classifications

Technical Update - Replacing the Term “Alien”

May 11, 2021

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

May 21, 2020

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 331.55 KB) between the AFM and the Policy Manual.

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole

4 USCIS-PM - Volume 4 - Refugees and Asylees

5 USCIS-PM - Volume 5 - Adoptions

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

Technical Update - Replacing the Term “Foreign National”

October 08, 2019

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

Version History

No historical versions available.

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