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March 2023: USCIS Issues Guidance on Analyzing Employers’ Ability to Pay Wages

20 Mar

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Update Applicable to:
All employers with immigrant employees.

What happened and what are the details?
On March 15, 2023, the U.S. Citizenship and Immigration Services today issued policy guidance on how we analyze an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications. 

Employers seeking to classify prospective or current employees under the first, second, and third preference employment-based immigrant visa classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition.

The relevant regulation requires the employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. If the employer has 100 or more workers, USCIS may instead accept a financial officer statement attesting to the employer’s ability to pay the proffered wage. The updated guidance also details various additional evidence employers may submit and explains how USCIS considers any evidence relevant to the employer’s financial strength and the significance of its business activities. Many employers satisfy the ability to pay requirement by submitting payroll records demonstrating that, during the relevant period, they have been paying the employee at least the proffered wage.

The update also adds an appendix containing an overview of common business forms or structures to help officers and stakeholders better understand the types of petitioning entities filing Form I-140, Immigrant Petition for Alien Workers, or Form I-129, Petition for Nonimmigrant Worker. These business forms or structures are also relevant to the new commercial enterprises underlying a Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor. Specifically, the appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service, and basic tax terms.

This guidance, contained in Volume 6 of the Policy Manual, is effective immediately upon publication and applies prospectively to petitions filed on or after that date.

For more information, please see the links below:

Policy Guidance

USCIS News Release

What do employers need to do?
Employers should review the links above for more information on paying wages for immigrant employees.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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