By: Attorneys Robert L. Reeves and Elsie Hui Arias
U.S. employers sponsoring their employees for a green card must prove the business has the ability to pay the prevailing wage to the beneficiary. The employer must prove that it has the ability to pay the wage from the time the labor certification is filed until the beneficiary obtains permanent residency status. Employers sponsoring nurses or physical therapists only have to prove ability to pay wages from the time they file the immigrant visa petition because labor certifications are not required for these categories.
The United States Citizenship & Immigration Services (USCIS) has recently become more aggressive in evaluating these visa petitions, especially in regards to the employers ability to pay the prevailing wage. In a published memorandum, the USCIS provided clarification and instructions concerning ability to pay determinations. To establish ability to pay, the employer must satisfy one of the following tests: (1) Net Income Test – the petitioner’s net income in the year of filing is equal to or greater than the proffered wage; (2) Net Assets Test – the petitioner’s net current assets in the year of filing are equal to or greater than the proffered wage; or (3) Actual Payment Test – the petitioner paid the beneficiary a salary equal to or greater than the proffered wage in that year and can be proven by pay stubs, W-2 forms or quarterly tax returns (Form DE-6).
In order to prove the ability to pay, the employer needs to submit either the company’s income tax returns, annual reports or audited financial statements for the relevant years. Where the petitioner employs more than 100 workers, the USCIS may accept a statement from the company’s chief financial officer. The employer can also submit profit and loss statements, bank account records, credit lines, assets or other financial records. Personal financial information from an employer may be submitted where the petitioner operates as a sole proprietor or partnership.
If the employer cannot show that it has the ability to pay the wage, the immigrant worker will not be able to get their green card. Determining whether the employer has the ability to pay the beneficiary the required wage is complicated. If you have questions regarding this issue, you would be well advised to consult with a knowledgeable attorney who is experienced in employment-based immigration law.