Policy Alert, March 15, 2023, PA-2023-08
An employer filing an Immigrant Petition for Alien Workers (Form I-140) must establish that the job offered to the beneficiary is realistic. The petitioner’s ability to pay the proffered wage indicated on Form I-140 is one of the essential elements in evaluating whether the job offer is realistic.
Accordingly, for immigrant petitions that require an offer of employment, the employer must demonstrate its continuing ability to pay the required wage as of the priority date through the time the beneficiary becomes a permanent resident.
Many employers satisfy the ability to pay requirement by submitting the initial required evidence described below together with payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage.
In order to establish ability to pay, the petition must include copies of the petitioner’s annual reports, federal tax returns, or audited financial statements for each available year from the priority date. The only exception to this requirement is if a U.S. employer employs 100 or more workers, it may instead include a financial officer statement.
Publicly traded companies of a certain size are required to submit annual reports to the U.S. Securities and Exchange Commission (SEC) on Form 10-K. The SEC Form 10-K provides an overview of the company’s business and includes its audited financial statements. These companies must also issue an annual report to shareholders, which contains the company’s audited financial data and is often a simplified version of the SEC Form 10-K. Either the SEC Form 10-K or the annual report to shareholders constitute an annual report under 8 CFR 204.5(g)(2). Annual reports of private companies are also acceptable but are most persuasive to establish a petitioner’s ability to pay when they contain audited financial data.
The petitioner’s business structure or entity classification election determines the applicable Internal Revenue Service (IRS) tax return form and filing deadline. Submitted tax returns should be complete, including all required schedules. At times, USCIS may request schedules, statements, attachments, and other supporting documentation when the submitted evidence does not establish the petitioner’s ability to pay. In addition, USCIS may request the submission of IRS-issued certified copies or transcripts of tax returns in certain circumstances, such as when the petitioner has amended its tax returns in the middle of USCIS’ adjudication of the petition or when there is a question about the information contained on the returns.
Appendix: Business Structures [6 USCIS-PM E.4, Appendices Tab] provides an overview of the most common business forms of petitioning employers and the tax forms they file with the IRS.
If the petitioner relies on financial statements to demonstrate ability to pay as initial evidence, the financial statements must be audited. Audited financial statements are financial statements that have been examined under an acceptable standard by an accountant authorized by the jurisdiction to perform the audit; for example, by a certified public accountant in accordance with generally accepted accounting principles (GAAP). Audited financial statements must be accompanied by an auditor’s report that states that the financial statements have been audited.
Audited financial statements are distinct from compiled or reviewed financial statements. Compiled and reviewed financial statements are less rigorous reviews of a client’s financial statements and therefore the petitioner may only use them to establish ability to pay when accompanied by the other initial required forms of evidence required by the regulation. The auditor’s report accompanying the financial statements states whether the financial statements have been audited, compiled, or reviewed.
There are four types of auditor’s reports that accompany audited financial statements: unqualified opinion, qualified opinion, adverse opinion, and disclaimer of opinion. Reports including an unqualified opinion are generally the most credible, reliable, and probative.
- An unqualified opinion states that, in the opinion of the auditor, the financial statements are free of material misstatements and are presented fairly in accordance with GAAP.
- A qualified opinion report states that, in the opinion of the auditor, the financial statements are presented fairly in accordance with GAAP, except for a specified qualification. A qualified opinion is generally issued when the auditor identifies a departure from GAAP or when the auditor could not audit one or more areas of the financial statements. Audited financial statements with a qualified opinion report may be credible, reliable, and probative to establish ability to pay, especially if the qualification does not relate to the net income or net current assets figures on the financial statements.
- An adverse opinion report states that, in the opinion of the auditor, the financial statements are materially misstated and do not conform with GAAP. A disclaimer of opinion report states that the accountant is unable to form an opinion on the financial statements. Officers should review financial statements with adverse or disclaimer of opinion reports along with other ability to pay evidence to determine whether all of the evidence submitted establishes a petitioner’s ability to pay.
The mere submission of annual reports, federal tax returns, or audited financial statements does not establish ability to pay. USCIS must analyze the financial information contained in these documents to determine whether they present persuasive information demonstrating that the petitioner possessed the ability to pay the proffered wage on the priority date and continuing until the beneficiary obtains lawful permanent residence.
If the petitioner employs 100 or more workers, a statement from a financial officer of the organization may serve to establish ability to pay the proffered wage. The financial officer statement may be submitted in place of annual reports, federal tax returns, or audited financial statements. Detailed letters that explain the basis of the financial officer’s conclusion in terms of the company’s finances are the most probative. USCIS has the discretion to determine whether the statement is, by itself, sufficient to establish ability to pay.
Examples of when a statement from a financial officer alone might not be sufficient to establish ability to pay include, but are not limited to:
- The petitioner has filed petitions on behalf of multiple beneficiaries to the extent that the ability to pay all of the salary obligations may be in question;
- Evidence in the record reflects that the petitioner may have fewer than 100 employees;
- The document is a copy of a letter dated several years before the filing date and has been submitted in support of other previously-filed petitions;
- The letter is inconsistent with other evidence in the record or publicly available information, such as when the petition (or financial documentation if submitted) shows large losses or the petitioner is in bankruptcy proceedings;
- The petition is filed by a successor-in-interest to the company that obtained the labor certification and the only evidence is a letter from a financial officer of the predecessor company to establish the successor’s ability to pay; and
- The statement does not indicate that the signatory is a financial officer of the petitioner.
The petitioner has the burden of establishing its continuing ability to pay the proffered wage. Ultimately, USCIS considers all evidence relevant to the petitioner’s financial strength and the significance of its business activities, whether listed in the regulation or related to other metrics.
In certain circumstances, the petitioner may submit or USCIS may request additional evidence, such as profit and loss statements, bank account records, or personnel records. For example, in a case involving a general partnership where the general partners are personally liable for the partnership’s obligations, additional evidence relating to the general partners, such as the partners’ personal tax returns, may be relevant.
The following subsections describe examples of evidence commonly submitted by petitioners to establish ability to pay.
Bank Account Statements
Bank statements show the amount in an account on a given date and do not identify if any funds may already be obligated for other purposes. Bank statements often reflect funds that were included on the tax return, annual report, or audited financial statements, such as taxable income or cash used in determining net current assets. If the petitioner submits all monthly statements since the priority date, the petitioner must establish that the amounts reported on the bank statements have not already been considered elsewhere, such as in a calculation of the petitioner’s net current assets, and must establish that such amounts reported on the bank statements reflect sufficient cash to establish ability to pay under the totality of the circumstances.
In the limited cases where USCIS may consider the personal assets and liabilities of an owner of the petitioner (for example, petitions filed by sole proprietors, general partners, or other natural persons), bank account statements may be probative of the petitioner’s ability to pay the proffered wage.
Although not required initial evidence, USCIS may accept personnel records as corroborating evidence of an employee’s dates of employment and salary, and the petitioner’s number of employees and overall payroll. Personnel records may include, but are not limited to, employment contracts, salary and payroll documents, and attendance records. USCIS does not, however, consider wages paid to other employees as available to pay the proffered wage unless the beneficiary is replacing a former employee.
Income and Assets of Others
A legal entity generally has a separate existence from its shareholders, members, managers, officers, or owners. Generally, USCIS does not consider the financial resources of persons or entities that have no explicit legal obligation to pay the proffered wage, including a parent company, shareholders and officers of a corporation, members or managers of a limited liability company (LLC) (even if the LLC is taxed as a partnership or disregarded entity), and limited partners. An annual report, audited financial statement, or tax return of a parent company is more probative of a subsidiary’s ability to pay the proffered wage where the subsidiary’s financial data is presented separately within the document.
For sole proprietors and individual employers of domestic workers, there is no separate legal entity. Therefore, USCIS considers the employer’s adjusted gross income, minus their personal expenses, when determining net income; and their personal liquid assets, minus any financial encumbrances on those assets, when determining net current assets.
In addition, although certain partnerships have a separate legal entity from their partners, general partners (as opposed to limited partners) are personally liable for the debts of the business. Therefore, if a petitioning partnership does not have sufficient net income or net current assets to establish ability to pay the proffered wage, USCIS may also consider whether a general partner of the partnership is individually willing and able to pay the proffered wage using the same analysis of income and assets for sole proprietors and individual employers detailed above.
Appendix: Business Structures [6 USCIS-PM E.4, Appendices Tab] provides an overview of the most common business forms of petitioning employers, including information on how they are formed, their fundamental characteristics, and the tax forms they file with the IRS.
Credit Limits, Bank Lines, or Lines of Credit
Lines of credit and other forms of debt are an integral part of any business operation. Documentation demonstrating a petitioner’s access to credit may establish a baseline of creditworthiness, and under the totality of circumstances, may be considered as one piece of evidence in consideration of whether the petitioner has the ability to pay the proffered wage. In instances where a petitioner is relying upon credit limits, bank lines, or lines of credit to establish ability to pay, USCIS must evaluate the overall financial position of the petitioner to determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy the proffered wage.
Comparable to the limit on a credit card, a line of credit that has not been drawn upon cannot be treated as cash or as a cash asset and would not be added to the petitioner’s net income or net current asset calculations. Any cash drawn upon from a line of credit or any other credit used should be reflected in the balance sheet provided in the tax return or audited financial statement (if available) and would be fully considered in the evaluation of the petitioner’s net current assets. If the petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner should submit evidence that demonstrates the amount of the line of credit available and that the line of credit augments rather than weakens its overall financial position. Relevant evidence could include monthly statements.
USCIS considers all evidence relevant to the petitioner’s financial strength and the significance of its business activities, whether listed in the regulation or related to other metrics.
If the petitioner establishes by documentary evidence that it has paid the beneficiary a salary equal to or greater than the proffered wage for each year from the priority date, the evidence may establish the petitioner’s ability to pay.
The wage paid to the beneficiary is generally established with:
- Wage and Tax Statement (IRS Forms W-2);
- Miscellaneous Income (IRS Forms 1099-MISC); or
- State wage and withholding reports that list the individual employee.
Even if the petitioner establishes that it has paid the beneficiary a salary that meets or exceeds the proffered wage, the petition must still contain an annual report, federal tax return, or audited financial statements for each year from the priority date or, for petitioners who employ 100 or more workers, a financial officer statement. Payments that do not compensate the beneficiary through wages, such as those made to health insurers for benefits or housing allowances (unless on the labor certification and advertised), are not part of the wages paid to the beneficiary.
Net income (also called net profit or ordinary income, depending on the corporate structure) consists of revenues less all expenses over a period of time. Where the petitioner’s net income over the relevant period is equal to or exceeds the proffered wage, the petitioner generally demonstrates its ability to pay that wage. USCIS does not add back depreciation.
As a separate consideration, net current assets are the difference between the petitioner’s current assets and current liabilities. Current assets consist of items having (in most cases) a life of 1 year or less, such as cash, marketable securities, inventory and prepaid expenses. Current liabilities are obligations payable (in most cases) within 1 year, such as accounts payable, short-term notes payable, and accrued expenses. Where the petitioner shows net current assets during the relevant period that are equal to or exceed the proffered wage, the petitioner has generally demonstrated its ability to pay that wage. USCIS generally does not consider total assets because total assets must be balanced by the petitioner’s liabilities and total assets may include assets that are not easily converted into cash in order to pay the proffered wage.
USCIS does not add net income to net current assets in determining a petitioner’s ability to pay since net income represents the sum of income remaining after all expenses were paid over a period of time, such as a fiscal year, whereas net current assets denote a specific moment in time. Therefore, the two metrics cannot be combined to establish a petitioner’s ability to pay the proffered wage.
If the petitioner has paid the beneficiary an amount that is less than the proffered wage, then the petitioner need only demonstrate that its net income or net current assets are equal to or greater than the difference between the proffered wage and the actual wage paid.
Net income and net current assets are generally calculated using a petitioner’s federal income tax returns. See Appendix: Business Structures [6 USCIS-PM E.4, Appendices Tab] for the most common business forms of petitioning employers and the tax forms they file with the IRS.
The priority date is January 1, 2009. The proffered wage is $50,000. In addition to the petitioner’s federal tax returns, the record contains IRS Forms W-2 demonstrating that the petitioner paid the beneficiary a $40,000 salary in 2009 and 2010. The petitioner can establish its ability to pay for 2009 and 2010 if its federal tax returns show either net income or net current assets equal to or greater than $10,000 for each year.
The ability to pay analysis is more nuanced than simply reviewing wages paid, net income, and net current assets. The petitioner may submit, or USCIS may request, additional evidence of the petitioner’s ability to pay the proffered wage, including, but not limited to, profit or loss statements, bank account records, or personnel records. Any additional evidence submitted must establish, when considered with the required initial evidence, the petitioner’s ability to pay. Additional evidence of the petitioner’s ability to pay the proffered wage must be credible and relevant.
Sometimes companies operate at a loss for a period to improve their business position in the long run. For example, a company may not expect research and development costs on a product line to generate revenue for several years. In those instances, the documentation should fully explain the sources of funding for the entity (or unit) and the expected profit potential. Whether the petitioner can demonstrate it has the ability to pay the beneficiary the wages described in the petition depends on the specific facts presented and consideration of all of the circumstances.
The following factors are among the others USCIS may consider in its totality of the circumstances analysis:
- The petitioner’s gross sales and gross revenues;
- The total wages paid to the petitioner’s current employees during the most recent fiscal years;
- Media accounts about the petitioner’s business;
- The number of years the petitioner has been doing business;
- The historical growth of the petitioner’s business;
- Any recent changes that may have disrupted or interrupted its business (for example, reorganization, merger, bankruptcy);
- The petitioner’s number of employees;
- The occurrence of any uncharacteristic business expenditures or losses from which the petitioner has since recovered (for example, extensive fire or flood damage); and
- The petitioner’s overall reputation within its industry.
In some cases, such as when a petitioner has one unprofitable year despite a history of profitability, these factors may establish a petitioner’s ability to pay the proffered wage despite a shortfall in net income or net current assets. As another example, USCIS may also take into account that the beneficiary is replacing a former employee or outsourced service or that an officer of the petitioning employer is willing and able to forego compensation specifically to cover the wage.
The petitioner may request that the proffered wage be prorated for the applicable portion of the priority date year. In addressing such a request, USCIS does not consider 12 months of net income towards its ability to pay the proffered wage for a period of less than 12 months. In this scenario, USCIS may prorate the proffered wage if the record contains evidence of net income or payment of the beneficiary’s wages specifically covering the portion of the year that occurred after the priority date, or both. USCIS may also consider the petitioner’s net current assets at the end of the priority date year towards the prorated wage.
The priority date is July 1, 2021. The annual proffered wage is $100,000. The petitioner established that it paid the beneficiary wages between July 1, 2021 and December 31, 2021 in the amount of $15,000. The petitioner also documented that its net income between July 1, 2021 and December 31, 2021 is $25,000. The net current assets shown on balance sheet of the petitioner’s 2021 federal tax return is $40,000.
Based on the above facts, the prorated wage is $50,000. If the petitioner requests that USCIS consider the prorated wage, it would have to show its ability to pay the prorated wage deficiency of $35,000, which is the difference between the prorated wage and the wages paid by the petitioner to the beneficiary during the prorated period from July 1, 2021 to December 31, 2021. Its net income of $25,000 during the prorated period is insufficient to pay the wage deficiency. USCIS does not combine prorated net income with net current assets. However, on December 31, 2021, the petitioner had sufficient net current assets to pay the prorated wage deficiency. USCIS does not prorate net current assets. Therefore, the petitioner in this example could establish its ability to pay the prorated wage deficiency of $35,000 for the priority date year based on its net current assets of $40,000.
If the petitioner has filed Form I-140 petitions on behalf of other beneficiaries, there may be a question as to whether the petitioner can meet the ability to pay obligation on all petitions. However, this analysis may not be necessary if the petitioner has paid the beneficiary of the petition a salary equal to or greater than the proffered wage since the priority date, and submitted the required regulatory evidence. Conversely, if the petitioner cannot demonstrate an ability to pay the beneficiary of the petition under review, the officer does not need to consider the issue of an ability to pay multiple beneficiaries.
In cases with multiple Form I-140 beneficiaries, where a petitioner with 100 or more employees provides a letter from a financial officer, the officer balances the evidence in the record to determine whether to use discretion to accept the letter as evidence of a petitioner’s ability to pay the proffered wages.
In cases necessitating analysis of the ability to pay multiple beneficiaries, the petitioner must demonstrate its ability to pay the proffered wages for each beneficiary for each year starting from the priority date of the petition under review. However, USCIS does not consider the petitioner’s ability to pay the proffered wage of another Form I-140 beneficiary:
- After the other beneficiary obtains lawful permanent residence;
- If the employer withdrew the Form I-140 petition filed on behalf of the other beneficiary;
- If USCIS denied or revoked the approval of the Form I-140 petition filed on behalf of the other beneficiary without a pending appeal or motion; or
- Before the priority date of the Form I-140 petition filed on behalf of the other beneficiary.
The analysis to determine the ability to pay the combined wages is the same as that for a single beneficiary, including taking into account wages paid to any of the beneficiaries.
Evidence to support a petitioner’s ability to pay the proffered wage for multiple beneficiaries may include, but is not limited to, the following:
- A list of all receipt numbers for the Form I-140 petitions that were pending, or approved as of, or filed after, the priority date of the current petition;
- The name of each beneficiary;
- The proffered wage for each beneficiary;
- The priority date of each petition;
- The status of each petition and the date of any status change (that is, pending, approved, denied, withdrawn, revoked, on appeal or motion, beneficiary obtained lawful permanent residence); and
- Documentary evidence of any wages paid to each beneficiary for each year starting from the priority date of the current Form I-140 petition or the priority date of the Form I-140 petition filed on behalf the other beneficiary, whichever is later. Such evidence may include:
- Wage and Tax Statement (IRS Form W-2);
- Miscellaneous Income (IRS Form 1099-MISC);
- State wage and withholding reports; and
- Pay vouchers or payroll records that specify the length of the pay periods and show gross or net pay, year-to-date income, income tax deductions, and tax withheld.
Officers should also conduct a totality of the circumstances analysis in each case where ability to pay involves multiple beneficiaries.
A petition filed by a successor-in-interest must establish, among other things, that the predecessor entity possessed the ability to pay the proffered wage from the priority date until the transfer of ownership to the successor, and the successor has possessed the ability to pay the proffered wage from the date of the transfer of ownership onwards.
Certain non-profit organizations are exempt from income taxation under the Internal Revenue Code. Nonetheless, tax-exempt non-profit organizations are generally required to file annual returns of their income and expenses on a Return of Organization Exempt from Income Tax (IRS Form 990 or IRS Form 990EZ). Churches and certain church-related organizations may be exempt from filing IRS Form 990. If a non-profit organization does not have tax returns, it must still provide annual reports, audited financial statements, or, for organizations with 100 or more employees, a financial officer statement, to establish its ability to pay the proffered wage.
See Section E of Appendix: Business Structures [6 USCIS-PM E.4, Appendices Tab] for more information on non-profit organizations.
[^ 3] Immigrant petitions that require an offer of employment include outstanding professor or researcher, multinational executive or manager, advanced degree professional or person of exceptional ability (except when seeking a national interest waiver of the job offer and, thus, the labor certification), skilled worker, professional, and other worker. For additional information on these classifications, see Part F, Employment-Based Classifications [6 USCIS-PM F].
[^ 4] See 8 CFR 204.5(g)(2). The petitioner’s ability to pay is separate from the statutory affidavit of support requirements in family-based petitions. See INA 213A. Therefore, any executed Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ), is not required as supporting evidence for a Form I-140, and does not document the petitioner’s ability to pay the proffered wage.
[^ 5] See 8 CFR 204.5(g)(2). USCIS reviews ability to pay as part of the Form I-140 petition adjudication, but can reexamine ability to pay in post-adjudication proceedings, given the employer’s obligation to maintain their ability to pay until the beneficiary obtains lawful permanent residence. In the event that a tax return, annual report, or audited financial statement is not available for the priority date year at the time of filing, USCIS may consider one of these three documents for the year before the priority date as part of the totality analysis discussed in Section B, Analysis [6 USCIS-PM E.4(B)].
[^ 8] The Financial Accounting Standards Board and the Governmental Accounting Standards Board are responsible for ensuring that GAAP is a high-quality benchmark of financial reporting. See the Financial Accounting Foundation’s About GAAP webpage.
[^ 11] Any employee authorized to manage and oversee the financial actions of an organization, or delegate if within the financial hierarchy of the organization, may be a financial officer. The formal title of such financial officer depends on the organization. Common names that identify a company’s financial officer include, but are not limited to, chief financial officer, principal financial officer, vice president of finance, chief accounting officer, treasurer, comptroller, or financial director.
[^ 12] For more information as to how officers balance all of the evidence, including relevant factors, see Section C, Additional Ability to Pay Issues, Subsection 2, Multiple Beneficiaries [6 USCIS-PM E.4(C)(2)].
[^ 14] See Matter of Aphrodite Investments Limited (PDF), 17 I&N Dec. 530 (Comm. 1980) (finding that a corporation is a separate and distinct legal entity from its owners or stockholders). In addition, see Sitar Restaurant v. Ashcroft, No. CIV.A.02-30197-MAP (D. Mass. Sept. 18, 2003) (finding that nothing in the governing regulation requires USCIS to consider the financial resources of persons or entities who have no legal obligation to pay the wage).
[^ 15] An LLC with only one member is generally not considered separate from its owner for income tax purposes. See IRS’s Single Member Limited Liability Companies webpage. However, since the single member of the LLC is not personally liable for for the debts of the business, they do not have a legal obligation to pay the proffered wage. For this reason, USCIS does not consider the personal assets and liabilities of the member of a single-member LLC.
[^ 19] See Joel G. Siegel and Jae K. Shim, Barron’s Dictionary of Accounting Terms (Barron’s Educational Series, Inc. 2000), p. 293.
[^ 20] See River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009) (holding that USCIS did not abuse its discretion in excluding employer’s depreciation deductions from its net income in determining that it did not have financial ability to employ a foreign skilled worker).
[^ 21] See Joel G. Siegel and Jae K. Shim, Barron’s Dictionary of Accounting Terms (Barron’s Educational Series, Inc. 2000), p. 117.
[^ 22] See Joel G. Siegel and Jae K. Shim, Barron’s Dictionary of Accounting Terms (Barron’s Educational Series, Inc. 2000), p. 118.
[^ 24] USCIS does not prorate net current assets. Net current assets on a balance sheet are a snapshot of a business’ current assets and current liabilities on a specific date. This amount represents what a petitioner could liquidate on that date to pay the prorated proffered wage. In contrast, net income covers a specific period of time and therefore must be prorated for the same period as the prorated proffered wage. As an example, when prorating net income, USCIS may consider monthly income statements. Stated another way, unlike with income statements, the accounts on the balance sheet (for example, assets and liabilities) are not closed out at the end of the accounting period. Instead, they are carried forward and become the starting balances at the beginning of the next period.
[^ 25] A substantially increased total labor expense of multiple beneficiaries may potentially impact the petitioner’s ability to continue to pay existing employees.