"Ability to Pay" Guidance for I-140 Employers with Sample Employer Letter
USCIS recently clarified some key points regarding the agency’s analysis when deciding if an I-140 petitioning employer has the “ability to pay” to proffered wage to their prospective foreign national employee.
In March 2023, the agency released a new policy alert and updated its policy manual to include new guidance that formalizes long standing USCIS methodologies and establishes some new evidentiary criterion.
Fortunately, this update was generally more favorable to employers. The headline is that USCIS now must take a larger “totality of the circumstances” approach to adjudication of I-140 petitions.
Please find the most important takeaways from the policy guidance listed below:
USCIS clarifies that Federal Tax Returns, Annual Reports, or Audited Financial Statements must be submitted as initial evidence of ability to pay. This was a longstanding policy that was just not formalized before 2023.
For employers with more than 100 or more workers, USCIS will accept a letter from a financial officer of the company attesting to the company’s ability to pay instead of Federal Tax Returns, Annual Reports, or Audited Financial Statements. A sample letter for employers with more than 100 workers is linked as a .pdf below. Please note that USCIS has not given strict guidelines for what titles at the company can be considered a “financial officer” for purposes of signing the ability to pay letter.
In situations where the ability to pay may not be immediately clear, USCIS is now formally directing adjudicators to take a larger, positive emphasis on “totality of circumstances''. This means the officer must take into account additional documents such as bank account statements, company personnel records, the income and assets of other related entities, the existence of credit limits and lines, gross sales and/or revenues, and total wages paid to current employees.
USCIS will allow for discretion and will generally accept weak tax returns to be combined with stronger unaudited financial statement as sufficient for ability to pay purposes;
If a subsidiary wants to use its parent company’s financial documents to prove the subsidiary’s ability to pay, USCIS prefers if the subsidiary’s financial data is separately detailed and those separate documents are provided;
To show ability to pay, USCIS will allow for a prorating of proffered wages for the year in which the priority date falls;
USCIS may request a sponsoring employer demonstrate an ability to pay the proffered wages of all its potential foreign national employees that are being sponsored for the approval of the single, immediate I-140 filing.
