An employer sponsoring an immigrant for legal permanent residence, or a green card, must provide proof that it has the ability to pay the required wage to the sponsored immigrant employee. Proof of ability to pay must be created from the time the priority date is established, i.e. either when the employer submits the employment-based petition (I-140, Immigrant Petition for Alien Worker) or when a PERM labor certification is filed, and until the green card is approved for the immigrant (beneficiary).
The strongest evidence of ability to pay is the W-2 form and year-to-date pay stubs for the subject foreign national from the date of establishment of the priority date to present, showing that the foreign national IS and WAS receiving the required wage. In every case, employers must submit copies of annual reports, federal tax returns, or audited financial statements. In lieu of annual reports, federal tax returns, or audited financial statements, employers with more than 100 workers may submit a statement from a financial officer of the company specifying that the company has the ability to pay the required wage. However, if an employer with more than 100 workers does submit a statement from a financial officer, it is still recommended to submit copies of annual reports, federal tax returns, or audited financial statements. Although an employer may have submitted one of these documents to prove ability to pay, a U.S. Citizenship and Immigration Services (“USCIS”) officer can request additional documents, such as profit/loss statements, bank account records, or personnel records. An employer may also voluntarily submit other financial documents, including profit/loss statements, bank account records, consolidated financial statements, or personnel records, but it must nevertheless submit at least one form of the required evidence — annual reports, federal tax returns, or audited financial statements.
Per USCIS guidance, ability to pay should be established if: the employer’s evidence shows that its net income is equal to or greater than the required wage; its net current assets are equal to or greater than the required wage; or, if the employer currently employs the sponsored immigrant, that it has paid or currently is paying the required wage. To calculate net current assets, an employer should subtract current liabilities from its current assets, which may include cash on hand, inventories, and receivables expected to be converted to cash within one year. For cases where the employer is currently employing the immigrant and it did not pay the proffered wage to the employee during all previous years, it can still demonstrate its ability to pay by showing that it had sufficient net income to make up the difference between the actual wage paid in a given year and the full proffered wage. Further, employers who experienced uncharacteristically unprofitable or difficult financial circumstances in a previous year may nonetheless demonstrate their ability to pay if they can show a sound business reputation, conditions that suggest a prompt recovery, reasonable expectations of increased business and profit, and the current ability to pay the proffered wage.
Keep in mind that ability to pay only needs to be demonstrated in employment-based petitions that require an offer of employment from a U.S. company. Self-petitioning employment-based immigrants (e.g., Aliens of Extraordinary Ability and National Interest Waiver applicants) do not need to prove ability to pay.