Ability to Pay

1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence? 2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability? 3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status? 4. Why are prorated net assets not sufficient evidence to support ability to pay? 5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?

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ANSWER: 

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

3. USCIS says that, in this situation, the new employer does not have to demonstrate the ability to pay during the entire period.  Once the Form I-485 has been pending for 180 days, the applicant may port and present evidence.  If AC-21 portability requirements are met, the dissolution or withdrawal of the I-140 petition (after the 180-day point) by the former employer does not affect portability.

4. USCIS does not specifically address why it will not accept prorated net assets as sufficient evidence to support ability to pay.  Prorating is not provided for in any policy, regulation, or statute.  Therefore, only current assets should be included in the calculation.

5. According to USCIS, the Yates Memo will apply only in respect of ability to pay. The adjudicating officer will look at the rate paid and not the total amount paid.  It is the petitioner’s burden to demonstrate that the rate that is being paid is an appropriate increment to the proffered wage.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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