“Ability to Pay” requirement for PERM and I-140 petitions

When preparing the PERM petition the employer should be aware of the “Ability to Pay” requirement.

As part of the PERM application, the employer must attest that they have the ABILITY to pay at least the offered wage (also referred to as the “proffered wage”) from the date of filing the PERM application (9089).

The offered wage must be equal to or higher than the wage on the prevailing wage determination.

Please note that the employer does not have to pay the offered wage at the PERM stage, they simply have to attest and prove that they have the ability to pay the offered wage from the date of the PERM filing through the approval of the foreign national worker’s permanent residence (I-485) approval. (USCIS may even check the petitioner’s ability to pay during the I-485 adjustment status process even after the I-140 has been approved).

The employer also is agreeing to pay the offered wage once the foreign national worker’s permanent residence (I-485) is approved.

Note: If the permanent position being applied for is the same position for which the beneficiary holds an H-1B visa with the same petitioner, the petitioner would be required to pay the prevailing wage amount or the equivalent prevailing wage level from the first date of renewal of the H-1B after the issuance of the prevailing wage determination.

One or more of the following must be presented during the I-140 USCIS filing to show that the employer has the ability to pay the offered wage:

  • The foreign national worker’s most recent W-2 and paystubs. If this amount exceeds the offered wage then the ability to pay has been met.
  • The petitioner’s (sponsoring employer) most recent company/ organization tax return or audited financial statement showing that net income (line 21 of page 1 of the 1120) is equal to or greater than the offered salary for each relevant year;
  • The petitioner’s net current assets are equal to or greater than the offered salary in all years under consideration. Net current assets are the difference between current assets and current liabilities. See schedule L on the 1120.
  • If the petitioner has more than 100 employees it may provide a signed statement from the financial officer, certifying the ability to pay the offered wage.

Financial documentation is not required by the DOL. However performing the ability to pay analyses when preparing the PERM petition can avoid an unnecessary ability to pay denial of the I-140 petition.

USCIS Memo on Ability to Pay – 5/4/2004

 

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