Employers sponsoring foreign workers for permanent residence through the PERM labor certification process should be aware of a growing trend at the U.S. Department of Labor (DOL). Recent Requests for Information (RFIs) suggest that DOL is taking a closer look at whether sponsoring employers can demonstrate their ability to pay the offered wage — an issue that historically received greater attention during the I-140 immigrant petition stage.
What Is the Ability to Pay Requirement?
When an employer files a PERM application, federal regulations require the employer to attest that it has sufficient funds available to pay the offered wage to the foreign worker and that it will be able to place the employee on payroll on or before their entry into the United States. Historically, detailed financial documentation to support this attestation has been requested and reviewed at the I-140 petition stage by USCIS — not at the PERM stage by DOL.
That pattern appears to be shifting.
What DOL Is Now Requesting
Recent RFIs from DOL’s OFLC are asking for a level of financial documentation that goes well beyond what employers typically expect at the PERM stage. Documents being requested include state payroll tax records, quarterly bank statements, profit and loss statements, federal income tax returns, current employee lists with job titles and salaries, year-to-date work contracts or letters of intent showing expected revenue, W-2 forms issued to employees, and 1099 forms issued to contractors.
For sole proprietors who plan to use personal funds to pay the offered wage, DOL is requesting personal income and financial statements going back three years.
These requests indicate that employers should be prepared to demonstrate their financial capacity much earlier in the employment-based immigration process than many have historically expected.
What the BALCA Decision Means
A recent decision from the Board of Alien Labor Certification Appeals provides important context. In Matter of Reeland Investments, BALCA addressed a situation where an employer’s tax returns showed negative net income, yet the employer argued it could still demonstrate ability to pay using the same net assets framework USCIS applies at the I-140 stage.
BALCA reversed the denial and agreed that applying the USCIS ability-to-pay framework was appropriate at the PERM stage in the absence of a specific DOL methodology. However, the Board made clear that employers cannot use this framework as a way to avoid submitting documentation. The burden of proof remains with the employer, and PERM certification can be denied when documentation is missing or when the financial evidence submitted contradicts the employer’s claim.
What This Means for Employers Right Now
The practical takeaway is straightforward — employers and their counsel should be treating ability to pay as a front-end issue in the PERM process, not something to deal with only if a RFI arrives. Financial analysis and documentation gathering should begin before the PERM application is filed.
At a minimum, employers should have federal tax returns from the priority date on file and ready to produce. Where the foreign worker is already employed, current pay stubs and wage documentation should also be maintained. Employers with more complex financial situations — negative net income, sole proprietorships, newer businesses — need to be especially prepared with alternative evidence of financial capacity.
This may represent a significant shift in how certain PERM applications are being reviewed by DOL. Waiting until DOL sends a RFI is a reactive strategy in an environment where DOL appears to be scrutinizing employer finances more carefully than before.
Best Practices for PERM Sponsors
- Review financial records before beginning the PERM process.
- Maintain current federal tax returns and payroll records.
- Keep documentation showing available assets and business revenue.
- Be prepared to respond quickly if DOL issues an audit or RFI.
- Consult experienced immigration counsel before filing complex PERM cases.
How NPZ Law Group Can Help
NPZ Law Group regularly assists employers with PERM labor certification, I-140 petitions, and employment-based green card strategy. If you have a PERM case in progress or are planning to sponsor a foreign worker, contact us at 201-670-0006 (x104), email info@visaserve.com, or visit visaserve.com to schedule a consultation.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Every PERM case is unique, and employers should consult qualified immigration counsel regarding their specific circumstances.
Frequently Asked Questions
Q: What is an ability to pay RFI in a PERM case?
A: It is a Request for Information from DOL’s Office of Foreign Labor Certification asking the employer to submit financial documentation proving it can pay the offered wage to the foreign worker. These are becoming more common at the PERM stage, even though ability to pay has traditionally been reviewed by USCIS at the I-140 stage.
Q: What documents should employers be prepared to provide?
A: DOL has been requesting state payroll tax records, bank statements, profit and loss statements, federal tax returns, employee lists with salaries, W-2s, 1099s, and work contracts showing projected revenue. Sole proprietors may also need to provide personal financial statements.
Q: What did the BALCA decision in Matter of Reeland Investments say?
A: BALCA held that in the absence of a specific DOL methodology, it is appropriate to apply the USCIS I-140 ability-to-pay framework at the PERM stage. However, the Board confirmed that employers still bear the full burden of proof and must submit supporting documentation — they cannot simply invoke the framework without evidence.
Q: When should employers start thinking about ability to pay?
A: Before the PERM application is filed. Treating ability to pay as a front-end issue rather than waiting for a RFI is the safer and more practical approach given the current trend in DOL adjudications.
Q: Can NPZ Law Group help with PERM cases and ability to pay issues?
A: Yes. NPZ Law Group assists employers with PERM filings, I-140 petitions, RFI responses, and employment-based green card strategy. Contact us at 201-670-0006 (x104), email info@visaserve.com, or visit visaserve.com.