New USCIS Policy Guidance on Employer’s Ability to Pay Proffered Wages for Employment-Based Immigrant Visas

The U.S. Citizenship and Immigration Services (USCIS) has released new policy guidance regarding the assessment of an employer’s ability to pay the proffered wage for certain first, second, and third preference employment-based immigrant visa classifications. Employers must demonstrate their continued capacity to pay the beneficiary the offered wage from the priority date of the immigrant petition.

To meet this requirement, employers can submit annual reports, federal tax returns, or audited financial statements from the priority date. For companies with 100 or more employees, a financial officer’s statement may be accepted as proof. Additional evidence may be submitted to demonstrate the employer’s financial strength and business activities’ significance. Many employers satisfy this requirement by providing payroll records indicating payment of at least the proffered wage during the relevant time frame.

The updated guidance also features an appendix with an overview of common business forms or structures to aid officers and stakeholders in understanding petitioning entities filing Forms I-140, I-129, I-526, and I-526E. This appendix offers insight into the formation, characteristics, tax forms, and basic tax terms associated with various business types.

This policy update, found in Volume 6 of the Policy Manual, is effective immediately and applies prospectively to petitions filed on or after the publication date.

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