Sindell Law Offices E-Min Newsletter (Vol. 6) - English Article #26
Many employees find themselves in situations where they are sponsored for permanent residence but the company cannot show that they can pay the prevailing wage for the position.
In order to have an employment based skilled or professional worker petition approved, the company must show that it had sufficient net income to cover the prevailing wage of the prospective employee at the time of the filing of the labor certification or the I-140 immigrant petition. Net income is the income which is left after expenses are taken out. Many companies try to avoid high net income by ending their fiscal year in the red or by paying out high officer salaries. In a small company situation, it is often incumbent upon the owner to try to save taxes and show a very low net income on the books. This situation makes it difficult for permanent resident applicants to obtain green cards.
On May 4, 2004, William Yates, the Associate Director for Operations at USCIS published a memo on the determination of ability to pay under 8 CFE 204.5(g)(2).
He wrote, in summary,
"Any petition filed by or for an employment based immigrant, which requires an offer of employment, must be accompanied by evidence that the prospective U.S. Employer has the ability to pay the proffered wage. A petitioner must file a fully completed Form I-140 along with initial evidence establishing its ability to pay the beneficiary the proffered wage. Required initial evidence (1.) annual reports, (2) federal tax returns, or (3) audited financials statements. The petitioner must submit a copy of at least one of these required documents. CIS adjudicators are instructed to take the following steps when making a determination of a petitioner’s ability to pay in the context of adjudicating the Form I-140."
An applicant or petitioner must establish eligibility for the requested benefit. 8 CFR 103.2(b)(1). If the record is complete with respect to all of the required initial evidence, CIS adjudicators are not required to issue an RFE to obtain further documentation to support a decision based on the record or establish the petitioner's ability to pay. CIS adjudicators should make a positive ability pay determination in any one of the following circumstances:
(1) Net Income
The initial evidence reflects that the petitioner's net income is equal to or greater than the proffered wage.
(2) Net current assets
The initial evidence reflects that the petitioner's net current assets are equal to or greater than proffered wage.
(3) Employment of the beneficiary
The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage. For example, W-2 forms for the beneficiary.
If the required initial evidence does not establish the ability to pay, adjudicators may deny the petition since the petitioner has not met his or her burden to establish eligibility.
Mr. Yates goes on to say that Petitioners may submit a financial statement in lieu of initial evidence and/or additional evidence such as profit/loss statements, bank account records, or personnel records. If the USemployer employs 100 or more workers, adjudicators are not required to accept, request or RFE for a financial statement. Acceptance of all of these documents by CIS are discretionary.
If the CIS adjudicator exercises discretion to accept either the financial statement or additional financial evidence, that evidence must clearly establish the petitioner's ability to pay. If the adjudicator has any doubts about whether the additional documents establish the petitioner's ability to pay, the CIS adjudicator may deny the petition and not RFE for additional evidence.
ANALYSIS
What I see here is a change to a denial mode without RFE's. Mr. Yates is essentially giving the service center's the right to deny a petition based on the evidence, straight away, without a request for additional evidence, which has almost become a right of process for applicants and petitioners, to answer any outstanding issues. Mr. Yates emphasizes that large companies can be exempt from the any or all of the close scrutiny, companies of less than 100 employees have to go through. This is a continuous threat to small company operations and their ability to sponsor immigrants. We believe that this memo will generate more outright denials. On the positive side, it does clarify that the CIS can look at additional evidence to adjudicate I-140 petitions. It also sends a message to petitioners, which is MAKE SURE THAT YOUR INITIAL I-140 filing is complete with all proof, or else, the petition could be denied without an RFE.
