On March 15, 2023, the United States Citizenship and Immigration Services (USCIS) issued a policy guidance to address the analysis of an employer’s ability to pay the proffered wage for certain employment-based immigrant petitions which require a job offer, including petitions filed under the EB-1B, EB-1C, EB-2 Advanced Degree/Exceptional Ability categories (except for EB-2 cases seeking a national interest waiver), and EB-3. Highlights of the new policy guidance include:
Employers must submit one of the following types of initial evidence:
- Annual Reports
- Either an SEC Form 10-K or an Annual Report to Shareholders is acceptable
- Federal Tax Returns
- Must be complete and include all schedules
- Audited Financial Statements
- Must be accompanied by an Auditor’s Report
- An unqualified opinion Auditor’s Report is the most credible, reliable, and probative
- Financial Officer Statement
- This is only permissible for employers with 100 or more workers
- The statement should be a detailed letter explaining the basis for the Financial Officer’s conclusion as to the state of the company’s finances
In addition to the initial evidence, USCIS may consider secondary evidence, including:
• Evidence that the employer has paid the beneficiary a salary equal to or greater than the proffered wage for each year from the priority date, as established by a Form W-2, Form 1099-MISC, or state wage and withholding reports
• Bank account statements for each month since the priority date, if the employer can establish that the amounts reported on the bank statements have not already been considered elsewhere (e.g., in an Annual Report, Tax Return, or Audited Financial Statements)
• Personnel records
• Income and assets of owners for sole proprietors and individual employers of domestic workers
• Credit limits, bank line, or lines of credit
USCIS will use a “totality of the circumstances” analysis
USCIS will consider all evidence relevant to the employer’s financial strength and the significance of its business activities. Whether an employer can demonstrate it has the ability to pay the beneficiary the wages described in the petition depends on the specific facts presented and consideration of all of the circumstances.
The following factors are among the others USCIS may consider in its totality of the circumstances analysis:
• 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 its business (e.g., 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 (e.g., extensive fire or flood damage)
• The employer’s overall reputation within its industry
We will continue to monitor the implementation of these changes, keep abreast of any potential litigation, and notify you of any material changes.
Your Dentons immigration attorney would be pleased to answer any questions.
