Ability to Pay Issues with I-140 Petitions

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Any I-140 petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.

It is important to remember that employers only need to show ability to pay the required amount by the “preponderance of the evidence” standard (the USCIS tends to apply an arbitrarily higher standard so we suggest reminding the USCIS of the correct standard).

The preponderance of the evidence standard only requires the employer to show that it is “likely/probably true” it has the ability to pay the offered wage. It does not require the employer to “establish the ability to pay beyond a doubt.”

If the tax returns, annual report, or financial statements show “that the petitioner’s net income is equal to or greater than the proffered wage,” ability to pay is satisfied. The petitioner may also use sufficient net assets to show ability to pay. The petitioner can also establish ability to pay via (W-2 and pay stubs) actual payment of the offered wage to the Beneficiary.

If the employer's net income or assets falls short (or W-2s already paid to Beneficiary) of the prevailing wage, compensation paid to officers in closely held corporations may be considered as additional financial resources of the petitioner.

However, these officers cannot offer to forgo salary paid for actual services performed. The employer must submit objective evidence that demonstrates both the officers’ willingness and their ability to forgo compensation.

Reprinted with permission.


About The Author

Dino Palangic is the founder of Faveo Paralegals which provides per-case, flat-fee immigration paralegal services to law firms and in-house legal departments of corporations across the United States. They are U.S. based and available via email, phone, or Skype. Their staff previously worked for top U.S. national law firms and in-house departments of major Fortune 500 Corporations. Their paralegals adhere to the highest ethical and professional standards set for paralegals by the American Bar Association.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.