Ability to Pay in PERM Cases

By Cecelia Thomas and Kisshia Simmons, Esq.

In employment-based permanent residence cases, the employer must complete the I-140 form. One of the essential aspects of the I-140 is the requirement that the sponsoring employer demonstrate an ability to pay the proffered wage. This requirement can be a challenging element in some cases.  However, there are steps that petitioning employers can take to identify and address ability to pay concerns and to increase the chance the U.S. Citizenship and Immigration Services (USCIS) will approve the I-140 petition.

USCIS in making a decision on the I-140 petition requires the employer to establish the financial ability to pay this wage as of the date the PERM labor certification was filed.  USCIS expects the employer to provide financial documents that evidence this ability to pay, generally in the form of annual reports, tax returns or audited financial statements.  In some cases these documents may not suffice, for example in cases where the annual reports, tax returns or audited financial statements are not available or the assets shown in these documents are not financially adequate.

Another possible way for an employer to demonstrate its ability to pay is through evidence that the sponsored worker has been employed by the petitioner since the filing of the PERM labor certification, earning a salary that is equal to, or greater than, the offered wage. A submission of W-2s and paystubs indicating that this salary has been paid since the PERM labor certification filing typically is sufficient to establish a company’s ability to pay. If the employer has not paid the offered wage since first filing the case,,,, the employer can demonstrate its ability to pay through documents that prove that the company’s net income or net current assets were equal to, or greater than, the offered wage or show that it can pay the difference between the proffered wage and the wages that were actually paid to the foreign national.  In some cases, the task of showing the ability to pay this difference can be in the form of bank statements.

Ability to pay issues have to be dealt with up front before securing an I-140 approval.  If not properly handled, they can lead to a failed PERM case, which results in the foreign national worker not obtaining permanent residence.  It is important to anticipate complications and make adequate preparations throughout the PERM process.  Please contact us if you have a PERM case in the near future and we will happily navigate you through the process.

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