New USCIS Policy Update: Analyzing Employer’s Ability to Pay Wages in Employment-Based Visa Petitions

The U.S. Citizenship and Immigration Services (USCIS) has issued new policy guidance regarding the evaluation of an employer’s ability to pay the proffered wage for immigrant petitions in first, second, and third preference employment-based visa classifications. This is particularly relevant when the sponsored worker changes employers. Employers must demonstrate their ability to pay the proffered wage from the priority date of the immigrant petition until the beneficiary gains lawful permanent residence. The guidance clarifies that when a beneficiary ports to a new employer while their Form I-140 is pending, USCIS will assess the employer’s ability to pay based on the facts from the priority date to the filing of the Form I-140. This guidance, effective immediately, updates and streamlines previous instructions and is part of USCIS’s ongoing efforts to support status adjustment applicants.

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