Overview
An employer filing an Immigrant Petition for Alien Workers (Form I-140) must show the offered job is realistic. A key part of that is demonstrating the petitioner’s ability to pay the proffered wage from the priority date through the time the beneficiary becomes a permanent resident.
Many employers meet this requirement by submitting the initial required evidence (tax returns, annual reports, or audited financial statements) and payroll records showing they paid the beneficiary at least the proffered wage during the relevant period.
A. Initial Required Evidence
The petition must include copies of the petitioner’s annual reports, federal tax returns, or audited financial statements for each available year from the priority date. Exception: U.S. employers with 100 or more employees may submit a statement from a financial officer instead.
1. Annual Reports
Publicly traded companies often provide audited financial statements in their SEC Form 10-K or shareholder annual reports — both acceptable. Private company annual reports are acceptable but are more persuasive when audited.
2. Federal Tax Returns
Submit complete federal tax returns (including schedules). USCIS may request additional schedules, certified transcripts, or other documents if information is unclear or amended returns exist.
3. Audited Financial Statements
Financial statements must be audited under accepted standards (e.g., GAAP) and accompanied by the auditor’s report. Compiled or reviewed statements are less probative and should be accompanied by other initial required evidence.
Auditor reports may be one of four types: unqualified, qualified, adverse, or disclaimer of opinion. Unqualified opinions are the most persuasive.
4. Financial Officer Statement
For employers with 100+ employees, a detailed statement from a financial officer may substitute for the other initial evidence. USCIS has discretion to determine whether such a letter alone is sufficient.
- Letters may be insufficient when: the petitioner has multiple I-140s and the ability to pay all wages is in doubt; evidence suggests fewer than 100 employees; the letter is outdated; inconsistent with other evidence; predecessor/successor issues; or if the signer is not clearly a financial officer.
B. Examples of Other Evidence of Ability to Pay
USCIS considers all relevant evidence of the petitioner’s finances under the totality of the circumstances. Examples include:
- Bank account statements — show cash but may reflect amounts already included in tax returns or balance sheets.
- Personnel records — payroll, W-2s, 1099s, pay stubs, employment contracts.
- Income and assets of others — generally not considered unless legally obligated (exceptions: sole proprietors, general partners, certain partnerships).
- Lines of credit — may be considered if drawn and reflected in financials; an unused credit limit alone is not cash.
C. Analysis
USCIS analyzes the financial evidence to determine if the petitioner had the ability to pay the proffered wage from the priority date onward.
1. Employment of the Beneficiary
If the petitioner paid the beneficiary wages equal to or greater than the proffered wage for each year from the priority date (documented by W-2s, 1099s, state wage reports), this may establish ability to pay — but the petitioner still must submit the initial required evidence (tax returns, annual reports, or audited financial statements).
2. Net Income and Net Current Assets
Net income and net current assets are separate metrics used in the analysis:
- Net income — revenues minus expenses for a period (USCIS does not add back depreciation).
- Net current assets — current assets minus current liabilities at a point in time.
If either metric equals or exceeds the proffered wage for the relevant year, the petitioner generally demonstrates ability to pay. USCIS does not combine net income and net current assets.
3. Other Factors
USCIS may consider additional factors (totality of circumstances), including gross sales/revenues, total wages paid to employees, years in business, growth history, disruptions (bankruptcy, reorganization), number of employees, media accounts, and reputation. These factors can sometimes compensate for a single unprofitable year.
D. Additional Ability to Pay Issues
1. Prorating the Proffered Wage
USCIS may prorate the proffered wage for the portion of the priority date year that occurs after the priority date — but it generally does not prorate net income over 12 months unless evidence supports the prorated period. Net current assets are not prorated but may be considered as of year-end.
2. Multiple Beneficiaries
When multiple I-140 petitions exist, the petitioner must show ability to pay each proffered wage for each year from the priority date(s). USCIS does not consider a petitioner’s ability to pay another beneficiary’s wage in certain situations (after that beneficiary obtains permanent residence, if that petition was withdrawn, denied/revoked without pending appeal, or before that petition's priority date).
Evidence to support ability to pay multiple beneficiaries may include: a list of receipt numbers, names, proffered wages, priority dates, petition statuses, and documentary evidence of wages paid (W-2s, 1099s, state wage reports, payroll records).
3. Successors-in-Interest
Successor petitions must show the predecessor’s ability to pay from the priority date until transfer, and the successor’s ability to pay from the transfer date onward.
4. Nonprofit Organizations
Tax-exempt nonprofits generally file Form 990/990-EZ. If they lack tax returns, they must still provide annual reports, audited financial statements, or (for employers with 100+ employees) a financial officer statement.
5. AC21 Job Portability
When a beneficiary ports to a new employer under AC21, USCIS evaluates the facts as of the time of filing of the petition under review. USCIS reviews the initial evidence (and any responses) submitted with the petition to determine whether the petitioner established ability to pay from the priority date until the filing date.