An Employer’s Ability to Pay

A sponsoring employer should be prepared to demonstrate its ability to pay the wage being offered, which is also known as the “proffered wage,” to the alien worker at the time it files its PERM labor certification application. Further, the employer must show that it can continue to pay the proffered wage during the immigration petition process, i.e. until the foreign beneficiary has received a green card.

Although U.S. Citizenship and Immigration Services (USCIS) makes the final determination on an employer’s ability to pay the proffered wage when the employer files a Form I-140, the U.S. Department of Labor (DOL) also has the right to request proof that the employer has the requisite financial ability.

Determining Financial Ability for PERM

A petitioning employer will be considered to have the requisite financial ability if it satisfies at least one of the following. (Note that every employment-based petition requiring proof of the employer’s ability to pay must include at least one of the below items.)

  • The employer submits as initial evidence federal tax returns, audited financial statements, or annual reports. If the employer submits an audited financial statement, said document must have been prepared by a certified accountant and must include a statement by him or her certifying that the report is based on audited figures.
  • If the company has more than 100 employees, then it can provide a signed statement from the company’s financial officer certifying the company’s ability to pay the proffered wage.

According to a USCIS memorandum commonly referred to as the Yates Memo, an adjudicating officer can make the discretionary determination that an employer has the ability to pay through any of the following:

  • The employer’s net income was equal to or greater than the offered salary from the date the PERM application was filed to the date the I-140 petition was approved.
  • The employer’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.)
  • The employer provides records indicating that it is employing the beneficiary, compensating the beneficiary at (at least) the proffered wage. If the wage is lower than the proffered wage, then monies used for the beneficiary’s wages can offset the amount an employer needs to prove ability to pay through net income or net current assets.

    -For example, say a beneficiary’s proffered wage is $70,000, and the employer’s net income is $50,000. Currently, however, the beneficiary is being paid $25,000. The employer in this situation can combine net income with the beneficiary’s current salary to satisfy the ability to pay $70,000.

Though financial documents are not required at the time of PERM submission, during the I-140 petition process, USCIS does require financial documents proving the employer’s ability to pay at the time it originally filed its labor certification application. In some cases, USCIS may additionally check the employer’s ability to pay during the I-485 adjustment of status process, even after an I-140 petition has been approved. Given the complexities of proving the ability to pay, it is important for employers to solicit the services on an experienced PERM attorney.

Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at info@hooyou.com. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.

For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links:

Updated 04/14/2017