On March 15, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance clarifying how the agency analyzes an employer’s ability to pay the proffered wage to support immigrant petitions in the employment-based first, second, and third preference categories.
Relevant regulations currently require an employer to submit one of three documents to establish the employer’s ability to pay the prevailing wage to the beneficiary as of the establishment of the priority date of the immigrant petition: (1) an annual report; (2) a federal tax return; or (3) an audited financial statement. If the employer has one hundred or more workers, USCIS may instead accept a letter from a financial officer attesting to the employer’s ability to pay the proffered wage.
USCIS’s new policy guidance notes that while the employer must still submit one of the three documents, the agency will focus its prevailing wage review on all evidence relevant to the employer’s financial strength and ability to pay the proffered wage. Due to the changing nature of business, USCIS notes that a more nuanced approach may be required in certain situations. Specifically, USCIS will review bank account statements; personnel records; income and assets of others; and credit limits, bank lines, or lines of credit.
To provide more flexibility, USCIS will also take a “totality of the circumstances” approach, which allows review of other relevant factors including the following:
- “The [employer’s] gross sales and gross revenues”
- “The total wages paid to the [employer’s] current employees during the most recent fiscal years”
- “Media accounts about the [employer’s] business”
- “The number of years the [employer] has been doing business”
- “The historical growth of the [employer’s] business”
- “Any recent changes that may have disrupted or interrupted [the employer’s] business (for example, reorganization, merger, bankruptcy)”
- “The [employer’s] number of employees”
- “The occurrence of any uncharacteristic business expenditures or losses from which the [employer] has since recovered (for example, extensive fire or flood damage)”
- “The [employer’s] overall reputation within its industry”
USCIS’s guidance seems targeted to encompass companies that may operate at a loss for a period of time so they can improve their business operations long term. This could be particularly relevant for startups or employers whose research and development costs may not generate revenue for several years. Employers that request a totality-of-the-circumstances review may want to submit documentation that fully explains the sources of funding for the entity (or unit) and the expected profit potential.
The update also adds an appendix describing different business structures and the evidence that may be submitted for each to establish an ability to pay.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
