Immigrant Worker Petition (I-140) – Proving Ability to Pay Wages

The process of sponsoring an employee for legal permanent residence involves a labor certification application (LC) that is filed with the U.S. Department of Labor, and submission of an employment petition for an alien worker and application for adjustment of status to the Bureau of Naturalization and Immigration Services (BCIS). Obtaining permanent residence status is often a lengthy and time-consuming process. This article addresses a troubling issue involving the processing of an employment petition for an alien worker.

Once the Department of Labor certifies the LC, the employer files a petition for an alien worker (Form I-140). The petition requires proof that the sponsoring employer has had the ability-to-pay the offered wage from the time the LC was filed to the present. Documents required to prove ability-to-pay may include annual reports, tax returns, or audited financial statements. If the petitioner has more than 100 employees, then a statement from the organization's financial officer will suffice.

The ability-to-pay requirement can be problematic for companies unable to show a net profit. For example, a successful company that experiences millions of dollars in sales each year but only shows a small profit may have their immigrant worker petition denied for lack of ability-to-pay if the wage for the offered position is greater than the net profit.

The regulations permit employers some flexibility in demonstrating ability-to-pay through supplementary evidence. However, the BCIS has complete discretion in allowing any additional evidence such as profit and loss statements, bank account records, credit lines, assets, or other personnel records.

The Administrative Appeals Office (AAO) broadened its view of ability-to-pay by holding that petitioners who employ aliens at the offered wage during the labor certification process should not be denied for lack of financial ability to pay. Required evidence to prove employment of the alien includes pay stubs, W-2 forms, or quarterly tax returns (Form DE-6).

The AAO has developed several formulas for determining whether a petitioner had the ability-to-pay an offered wage. If you have any questions regarding this very important issue then please contact the business and employment department at Reeves and Associates.