Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Determining The Employer’s Ability To Pay The Proffered Wage.

When a petition is filed for an employment-based immigrant (requiring an offer of employment) the United States employer must demonstrate its ability to pay the prevailing wage from the date the priority date is established (filing of the labor certification) until the case is adjudicated. As you are probably aware, USCIS regularly denies I-140 petitions on the basis that the petitioning employer does not have the ability to pay. In so doing, CIS cites the regulation at 8 C.F.R. 204.5(g)(2) which states in pertinent part:

Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be in the form of copies of annual reports, federal tax returns, or audited financial statements.

Decisions regarding ability to pay are normally based only on the Petitioner's federal income tax returns and all appropriate schedules. For example, USCIS recently denied a Petitioner's I-140, Immigrant Petition for Alien Worker on the basis that the petitioner's taxable income before net operating loss deduction and special deductions, or net current asset was less than the beneficiary's full proffered wage.

While this appeared at first glance to be a logical analysis, USCIS' method in arriving at the conclusion is solely on a cash basis tax adjustment whereas some employers may report their tax returns on an accrual basis. As such, there are other indicators of wealth such as accounts receivable, loans receivable, the company's borrowing power in determining the Petitioner's ability to pay the proffered wage that were not accounted for. Thus, a competent attorney in the modern practice of employment related immigration law must not only be familiar with the immigration law component of the case, but perhaps more importantly, must be familiar with how to read and interpret tax returns.

Acknowledging the same, the Administrative Appeals Office, recently overturned 3 negative decisions by the California Service Center. In so doing, the Administrative Appeals Office approved employment-based permanent residence for a skilled worker (EB3) where the business established its ability to pay the proffered wage through evidence of its existence for thirteen years, its prior outsourcing of work to be performed by the beneficiary in-house, its high gross receipts, its steady annual profits, its adjusted gross income consistently higher than the proffered wage, and its sustained balances in multiple bank accounts. All of the decisions are available on-line at www.uscis.gov. One of the more analytical decisions is Matter of X, WAC 03 047 54069 (AAO Dec. 30, 2004) California Service Center. You should encourage your "attorney" or paralegal to read it. If you have trouble finding it on the government's website, you may link to it at www.wilneroreilly.com.

Given the complexity of the ability to pay issue, in addition to hiring competent immigration counsel, we often recommend the hiring of an independent financial expert to review the Petitioner's business assets, Quarterly Wage and Withholding Reports, Employee Earnings Summaries and W-2's. Independent expert testimony in the form of writing may serve to overcome any doubts the CIS has about an employer's ability to pay the prevailing wage.

The likelihood of an approval is greater if the Petitioner can establish its ability to pay the proffered wage through evidence of the totality of its financial circumstances, including its substantial annual net current assets, good reputation, substantial capitalization, ample wages paid to its employees, and payment of actual wages to the beneficiary in excess of the proffered wage.

While it may cost more to assemble a team of the best, it will save you money in the long run. After all, it's the future of you and your family.

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