The approval of an I-140 petition heavily relies on demonstrating the sponsoring employer’s ability to pay the proffered wage to the beneficiary. According to 8 CFR § 204.5(g)(2), this burden lies with the employer, requiring evidence of financial capability from the petition’s priority date until the beneficiary achieves permanent residency.
Key Documentation Types:
1. Annual reports with detailed financials.
2. Audited financial statements from an independent accountant.
3. U.S. Federal Tax Returns, including all schedules.
Three-Prong Test for Ability to Pay:
To establish the ability to pay, USCIS evaluates if:
1. The employer has already paid the beneficiary at least the proffered wage.
2. The employer’s net income is equal to or greater than the proffered wage.
3. The employer’s net current assets exceed the proffered wage.
Practical Application:
• If the employer currently pays less than the proffered wage, net income from tax returns can demonstrate ability to cover the shortfall.
• Current assets, calculated from Form 1120, can also be used if net income does not meet the requirement.
Additional Considerations:
• Employers should be prepared to submit additional evidence like profit and loss statements or bank records.
• If multiple I-140 petitions are filed, the employer must demonstrate the ability to pay the cumulative proffered wages for all beneficiaries.
• On case by case basis, at their discretion, USCIS may consider the overall magnitude of petitioner’s business activities in determining the petitioner’s ability to pay following the standards set forth in Matter of Sonegawa, 12 I&N Dec 612 (Reg’l Comm’r 1967).
The standard of proof for these cases is the “preponderance of the evidence,” meaning employers need to provide credible evidence showing it’s likely they can pay the proffered wage.
Proper planning and documentation are crucial at the initial stages of the petition process to avoid RFEs or denials related to the ability to pay.