Sponsoring an employee for legal permanent residence under the second and third preference employment categories involves a labor certification application, employment petition for an alien worker, and application for adjustment of status. Obtaining permanent residence status through employment is often a lengthy and time-consuming procedure. This article addresses a troubling issue involving the employment petition for an alien worker.
Once the Department of Labor certifies the labor certification, 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 labor certification 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 if the net profit is less than the offered wage.
The regulations permit employers some flexibility in demonstrating ability-to-pay through supplementary evidence. However, the Bureau of Citizenship and Immigration Services has broad discretion on whether to allow 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 despite low net income. If you or your employer have any concerns about this very important issue then please contact the business and employment department at Reeves and Associates.
