When proceeding with an employment-based green card process, one of the most critical factors determining whether your employer is eligible to sponsor is your employer’s ability to pay the Prevailing Wage (“Ability to Pay”). Even if the job itself is fitting and the applicant’s degree or experience satisfies the minimum requirements for the job, if the sponsor is incapable of paying the Prevailing Wage, i.e., fails to prove the Ability to Pay, USCIS will not approve the I-140 petition for the foreign worker.
What proves the employer’s Ability to Pay? Evidence that USCIS will accept is one of three things:
1) Net Income calculated on a tax return;
2) Net Current Asset as stated in the financial statements; Or
3) If the foreign worker is hired during the green card process, a pay stub or W-2 showing that the salary equal to or higher than the Prevailing Wage has been continuously paid.
Exceptionally, USCIS accepts a confirmation letter from the Finance Officer as proof for sponsoring companies with more than 100 employees.
The third evidence is the basis for becoming a sponsor of the employment-based green card process, even if the employer runs a deficit or has just been established. For example, even in a company operating in a deficit for several years, Ability to Pay is not an issue if a foreign employee has been employed as H-1B status or other non-immigrant status and continues to receive more than the Prevailing Wage. Of course, if the salary received is less than the Prevailing Wage, the difference must be proved with financial data, such as the net income on a tax return or net current asset. It is okay for a foreign employee to work for less than the Prevailing Wage before receiving a green card. Because the Prevailing Wage is the amount that must be paid after the application for a green card (i.e., I-485) is approved.
The period in which the employer must prove the Ability to Pay is from the submission date of an application for a Labor Certificate through the PERM system to the approval date of I-485. Therefore, it is advisable to bring the updated evidence of your employer’s Ability to Pay with the latest financial information to the I-485 interview. In other words, you must show that the employer’s ability to pay the Prevailing Wage has been continuously maintained until the time of the I-485 interview, which is the final step of the employment-based green card process.
There is a caveat when proving the Ability to Pay. If your employer is applying for multiple employees’ permanent residency simultaneously, the employer must prove that they are able to pay more than the sum of the Prevailing Wages for those employees. Besides, in case of temporary loss due to a pandemic situation such as last or this year, it would be recommended to get help from an expert in immigration law, especially with the employment-based green card process, to explore possible options.