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'Ability to Pay the Proffered Wage’ in the Small Employer Context
 
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Updated: October 17, 2017

Note:  An earlier version of this article appeared in Volume 3 of the AILA Rome District Chapter Newsletter, ‘When in Rome...’

All employment-based immigrant petitions that require an offer of employment ‘must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage.’  8 CFR § 204.5(g)(2).  This applies even to I-140s filed for EB-1-3 multinational executives or managers, a category that does not require a labor certification.

In the midst of the biggest recession since World War II it would be surprising if USCIS did not increasingly query smaller petitioners’ financial stability and ‘ability to pay the proffered wage.’  Petitioners that employ 100 or more persons may satisfy the requirements with a statement from a ‘financial officer.’  For smaller petitioners, I would like to suggest three sample responses to be used in appropriate cases.

 

  1. Where Net Assets Are Greater Than the Proffered Annual Wage No Additional Proof Is Required.

    The May 4, 2004 memorandum of William R. Yates, Associate Director for Operations, entitled “Determination of Ability to Pay under 8 CFR 204.5(g)(2)” states:

    CIS adjudicators should make a positive ability to pay determination in any one of the following circumstances:
    ….
    (2)   Net current assets
    The initial evidence reflects that the petitioner’s net current assets are equal to or greater than the proffered wage.

    AILA InfoNet Doc. 04051262 (emphasis added).  Kurzban’s Immigration Law Sourcebook summarizes the Yates memorandum this way:

    USICS should make a positive determination, without issuing an RFE or NOID, where the initial evidence reflects that:  (1) the petitioner’s net income is equal to or great than the proffered wage; (2) the petitioner’s net current assets are equal to or greater than the proffered wage; or (3) there is credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage. 

    Immigration Law Sourcebook 1013 (12th ed. 2010)(emphasis in original).  If proof submitted with the I-140, such as audited financial statements or tax returns, shows net asset value in excess of the annual salary offered to the intending immigrant, according to USCIS policy a positive determination should be issued that the petitioner has the ability to pay.  An adjudicator who requests further evidence should be reminded of agency policy, although a prudent lawyer will then go on to give further evidence if it is available. 

  2. Continuing Support from the Foreign Related Company Must be Counted Toward the Petitioner’s Ability to Pay.

    In cases where the US petitioner has a larger, more financially powerful foreign relation (parent, subsidiary, branch office, sister company or affiliate) its pledge of financial support to the US petitioner should be included in the I-140 petition.  In a well-known case the District Court for the District of Columbia reversed an INS decision that the petitioner church did not have the ability to pay the beneficiary’s salary:

    New divisions in businesses or new parishes of larger churches may not themselves be financially profitable, but if documents show that they may rely on the larger body for support, it is arbitrary and capricious for the INS not to consider the resources of the larger organization in making its evaluation of ability to pay.

    Full Gospel Portland Church v. Thornburgh, 730 F. Supp. 441 (DDC 1988).  Proof should also be submitted of the foreign company’s ability to make good on such a pledge; this can also be accompanied by bank statements or wire transfer advices showing that such financial support has been given in the past.  

  3. The Beneficiary Will Increase Petitioner’s Income and Therefore Petitioner Has the Ability to Pay Him.

    The USCIS must consider the ability of the intending immigrant employee to add to the firm’s income.  Matter of Sonegawa, 12 I&N Dec. 612 (1967)(ability to pay wage established because new employee would bring in additional business).  The discussion in Construction and Design Co. v. USCIS, (7th Cir. April 21, 2009)(AILA InfoNet Doc. 09042338) is instructive, even though the decision was adverse to the employer.  Citing Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898, 903 (D.C. Cir. 1989) Circuit Judge Posner points out that where an employee would boost a firm’s income by more than his salary a sensible employer would hire him even if it had to borrow the money to do so.

    Proof that it makes economic good sense to hire the beneficiary, or if he is already with the petitioner, to keep him on a permanent basis, is often close to hand.  It may well have been assembled as part of the case in chief.  If the beneficiary has been working for the US employer, perhaps in L-1 status, have the company’s sales doubled since he was appointed Director of Sales?  Has the intending immigrant while working in the UK hugely increased revenues of the parent company in a role that he would be carrying out in the US?  If you can prove that the intending immigrant will pay for himself through the addition of company income, the ‘ability to pay’ hurdle can be cleared.

Conclusion

If your client is a large, well-established company its ‘ability to pay’ may not be questioned.   However, the issue can be potentially fatal to an I-140 petition filed by a smaller company, or one that is temporarily in the financial doldrums.  Fortunately there are several ways to approach the ‘ability to pay’ problem, three of which have been mentioned above. 

 

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