USCIS Memo on Ability to Pay
Posted May 21, 2004

The USCIS issued a memorandum (Memo) on May 4, 2004, addressing the circumstances under which an adjudicating officer should issue a Request for Evidence (RFE) pertaining to an employer's ability to pay the offered wage in a "green card" case. As part of the USCIS's backlog reduction plan, they intend to amend the regulations that address issues of proof regarding ability to pay. In the interim, the Memo is intended to direct adjudicators as to when to issue RFEs on the ability to pay aspect of a case and when to simply make a decision based on the documents submitted. This Memo was issued by William R. Yates, Associate Director of USCIS Operations on the subject of determining an employer's ability to pay under 8 C.F.R. 204.5(g)(2).

The issuance or non-issuance of an RFE can have a significant impact on the outcome of a case. Historically, cases were never denied without an RFE and a chance to respond to any perceived deficiencies. However, as explained in our May 7, 2004 article, USCIS Memo: More Denials, Fewer RFEs, a separate May 4, 2004 Memo altered this. The change in practice and policy is of great concern to immigration practitioners and our clients. In the past, some cases would receive RFEs and, after submission of additional legal argument, explanation, and/or evidence, the cases would often be approved.

Ability to pay is an important aspect of all employment-sponsored green card cases. Essentially, the concept is that, in order for an employer to be in the position to offer a job, that employer must have the financial capability to pay the wages being offered for the position. Ability to pay is measured at the time the job is initially offered, that is when the labor certification is filed, and ability to pay must continue throughout the course of the case until the I-485 is approved. This is a significant aspect of the I-140 portion of the case and is now often being asked before issuing the approval on the I-485 adjustment of status application as well. Ability to pay can be a somewhat complex issue, as it cannot always be resolved simply by reviewing the bottom line of the employer's tax returns. We have recently written an article on this subject to be published in the May / June 2004 issue of AILA's Immigration Law Today. Historically, many RFEs have been issued addressing ability to pay concerns.

Guidelines

The Memo sets forth the following guidelines for the I-140 filing and when the adjudicators must issue an RFE. These are set out below.

Documents for an I-140 Approval on Ability to Pay

Petitioners or employers must file I-140 petitions that are fully complete, meaning no required items are left blank, along with the initial evidence addressing the ability to pay. The initial evidence that is required under the regulations includes, in the alternative: (a) annual reports; (b) federal tax returns; or (c) audited financial statements. At least one of these items must be submitted. If the USCIS adjudicator finds that portions of the I-140 petition are blank pertaining to the date the business was established, the number of employees, or the gross / net income, then the examiner must issue an RFE on these matters. The examiner must also issue an RFE if the I-140 petition is filed without at least one of the required pieces of initial evidence.

Evidence Sufficient to Issue an Approval

If the case is filed with the required initial evidence, the adjudicators do not have to issue an RFE to request additional proof of ability to pay. The Memo indicates that the adjudicators should make a favorable decision if the case contains proof of one of three specific matters. The first is that the company's net income is equal to or greater than the wage that is offered. The second is that the company's current net assets are equal to or greater than the offered wage. The third is that the petitioner is employing the beneficiary and paying the beneficiary a wage in an amount equal to the prevailing wage.

Concerns Not Addressed in the Memo

What is not addressed in this Memo is whether the case will be approved based upon a combination of the three specified types of cases. In many instances, the beneficiary will be working for the company but will have earned less than the offered wage for a number of reasons. The company's net income may be slightly below the offered wage. The net income, however, may be sufficient to make up the difference in the actual wage and the offered wage. Thus, it ordinarily would be argued that these two items combine to prove that the company can pay the required or offered wage. The Memo is written in an either / or fashion, which often may not match with real-life situations.

The Memo states that, if the required initial evidence does not establish the ability to pay, the case can be denied without an RFE since the petitioner has the burden of proof.

Employer's Other Financial Documents

Petitioners or employers sometimes provide various types of financial documents, rather than the standard initial evidence or, in some cases, in addition to the standard initial evidence. These statements include documents such as profit / loss statements, bank account records, and personnel records. Under the regulations, the adjudicators are not required to accept or request financial statements from employers with more than 100 employees in order to establish the employer's ability to pay. Adjudicators do not have to accept or request additional financial evidence from any employer. These requests are discretionary under the explanation provided in the Memo. Therefore, cases can be denied without RFEs if the initial proof is not sufficient to establish the employer's ability to pay.

In the event that the adjudicator chooses to accept different or additional financial documents, the documents are required to clearly establish the employer's ability to pay. If there are any doubts, the adjudicator can deny the petition, and does not have to issue an RFE to clarify the evidence that they were not even required to accept.

Denials Should be Clear and Specific

A denial is required to be written in a manner that clearly and specifically explains the reasons for the denial.

Fraud Should be Referred to FDU

Cases will be referred to the Fraud Detection Unit (FDU) if the adjudicator has articulable reasons for believing that any documents submitted are not legitimate.

Conclusion

We hope that any reduction in RFEs will result in more approvals rather than more denials on this important matter of an employer's ability to pay the required wage. We will closely monitor cases where ability to pay could be a concern and will advise MurthyDotCom and MurthyBulletin readers if there are any discernable trends in I-140 processing as a result of this Memo.