Author: Attorney Jian Joe Zhou (jzhou@hooyou.com)

Introduction

In the PERM labor certification process (Program Electronic Review Management), the employer must demonstrate the ability to pay the wage offered for the position to ensure that hiring a foreign worker will not negatively impact the U.S. labor market. The U.S. Department of Labor (DOL) requires employers to submit financial documentation proving they can pay at least the Prevailing Wage Determination (PWD) for the offered position. Failure to provide sufficient financial evidence may result in the denial of the PERM application.

This article provides a comprehensive guide on how employers can prove their financial ability, covering the review period for financial documentation, methods of calculating financial ability, and acceptable forms of proof. These insights will help employers improve their chances of a successful PERM application.

Please note that the ability to pay issue is reviewed by the USCIS during the I-140 filing. However, the required documents must be retroactive to the PERM filing date. Therefore, prudent planning is crucial.

1. Financial Review Period for Employers

1.1 From PERM Filing Date (Priority Date) to I-140 Approval Date

This is the core period for financial review. The employer must demonstrate that, during this timeframe, they have the financial resources to pay the wage determined by the Department of Labor (PWD) or a higher wage offered by the employer, as stated in the PERM ETA 9089 form. The prevailing wage determination process occurs before the filing of the ETA 9089 PERM application.

1.2 From I-140 Approval to I-485 Green Card Approval

After the I-140 petition is approved, USCIS typically does not re-examine an employer’s financial ability. However, there have been instances where USCIS has checked this issue during the I-485 process.

2. How to Calculate an Employer’s Financial Ability

2.1 Salary Payment to the PERM Beneficiary

If the PERM beneficiary employee has been paid the required PERM wage during the review period, then the employer’s ability to pay is considered established.

2.2 Using Net Income or Net Current Assets Calculation

If the PERM beneficiary employee has not been paid the required PERM wage (e.g., if they are not yet working for the employer and have not received any salary), the employer is required to demonstrate that either their net income or net current assets are at or above the required PERM wage, offset by any wages already paid to the beneficiary in a particular year.

2.3 Employers with More than 100 Employees

A statement from the CFO of the PERM employer attesting to the ability to pay will generally be sufficient to satisfy the financial ability to pay requirement.

2.4 Totality Consideration

If an employer cannot prove their financial ability through traditional means, USCIS may consider other factors, such as the partner’s capital investment commitment or the financial support of a parent company.

3. Documents Required to Prove an Employer’s Financial Ability

3.1 Corporate Tax Returns

Employers should submit tax returns covering the period from the PERM filing date to the I-140 filing date.

3.2 Audited Financial Statements

For larger companies, audited financial statements provide a comprehensive view of the employer’s financial status.

3.3 Payroll Records

If the foreign worker is already employed by the company, the employer should submit pay stubs and W-2 forms for the review period.

3.4 Evidence for Totality Consideration

• Bank Statements: Employers can provide bank statements covering the period from the PERM filing date to the I-140 filing date to demonstrate consistent cash flow.

• Asset and Investment Proof: Employers can submit documents proving ownership of valuable assets or long-term investments.

• Other Documents: Additional supporting documents from the parent company’s financial records may also be useful.

Conclusion

In the PERM labor certification process, employers must demonstrate their ability to pay the Prevailing Wage (PWD) for the position. This is a highly technical issue that should be reviewed by an experienced attorney before initiating the PERM process. If the financial ability to pay is certain, an I-140 petition filed based on an approved PERM is generally approved without issue.

About the Author

Attorney Jian Joe Zhou is a managing partner and senior attorney at Zhang & Associates, with over 20 years of experience in business immigration law. He has successfully handled thousands of immigration cases, including complex H-1B petitions across various industries and professional backgrounds. For more information about legal services, contact Attorney Jian Joe Zhou at jzhou@hooyou.com.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(02/15/2025)