Employer's Ability To Pay in Hiring Foreign Workers

By: Jean S. Tinsay, Esq.

An employer need not be a Fortune 500 company, have been in business for decades or employ dozens of workers in order to sponsor an alien to work for its company in the United States. While the bigger and more stable companies would certainly qualify to sponsor an alien for employment in the United States, so too would smaller businesses, sole proprietors and even individuals provided they can comply with the USCIS requirements for employment-based immigrant petitions on behalf of alien workers. For example, a sole proprietor who owns a home for the elderly can hire caregivers abroad or even an individual who is in need of a nanny for her children.

A showing that the employer is financially able to pay the salary of the alien worker is one of the important requirements in filing an employment-based immigrant petition. The employer's ability to pay alien worker's salary must be demonstrated from the time the priority date is established (date the labor certification application or immigrant petition is filed on behalf of the alien worker) and continuing until the alien worker obtains U.S. permanent lawful residence status.

For large companies employing 100 workers or more, the financial ability to pay requirement can be met by simply providing the USCIS with a statement from the employer's financial officer establishing their ability to pay the wage offered to the alien worker.

However, for employers with less than 100 workers, financial ability has to be established and proven. This can be done by submitting copies of (i) annual reports, (ii) federal tax returns or (iii) audited financial statements. In reviewing these documents, the USCIS will make a positive determination of ability to pay in the following instances:

(i) when employor's net income is equal to or greater than the wage offered to the alien;
(ii) when net current assets are equal or greater than the wage offered to the alien; or
(iii) When the records contains credible verifiable evidence that the employer is currently employing the alien and pays the alien the offered wage.

The USCIS will also accept additional documents such as the employer's profit/loss statements, bank account records, or personnel records. If employer is a sole proprietor, the USCIS will consider the individual personal assets and liabilities in determining whether it meets the ability to pay requirement.

If the employer's documents are not sufficient to establish financial ability to pay, the USCIS may take into account certain discretionary factors in determining whether the employer meets the ability to pay requirement.

In one case, the USCIS was not deterred in finding that the employer had the ability to pay the wage offered to the alien despite the fact that the employer's net income was substantially less than the wage offered to the worker by considering employer's "reasonable expectations of continued increase in business and increasing profits." In determining that the employer had the ability to pay the alien's wage, it took into account the following factors: (i) length the employer had been in business; (ii) employer's ability to pay the salaries of its current workers without evidence of financial difficulties; (iii) (that) the addition of the worker would substantially increase employer's business; and (iv) (that) the employer was well recognized as evidence by numerous articles published in magazines.

In another case, the USCIS considered the ability of the employer to generate income in determining what is suitable evidence to demonstrate financial ability to pay the alien worker's salary.

The employer's ability to pay is only one of the requirements to be met before the USCIS will favorably decide an employment-based immigrant petition. There are other requirements that must be complied with. Filing an employment-based immigrant petition is a long and complicated process and best done with the assistance of an immigration attorney.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com
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