Ability to Pay

Employers sponsoring foreign workers for permanent full-time positions through the I-140 Petition for Foreign Workers are required to demonstrate their ability to pay the required wage for the position offered. The documents used to prove the required wage are often confidential and sensitive in nature. For this reason, many employers hesitate in providing the information. We discuss what documents can be used to satisfy the ability to pay the required wage here.

How do we show our ability to pay the required wage for an I-140 Petition?

US Citizenship and Immigration Services (USCIS) requires that an employment-based I-140 Petition be supported by evidence of the US employer’s ability to pay the required wage. There are several documents that can be used to meet this requirement. 

  • Companies that employ fewer than 100 workers can provide: 
    • Annual Report;
    • Federal Tax Return (The most common way to prove the ability to pay);
    • Audited Financial Statements; or
    • Additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the USCIS.
  • Companies that employ 100 or more workers can provide:
    • Any of the items listed for companies with fewer than 100 workers; or
    • A statement from the financial officer to establish the employer’s ability to pay the required wages.
  • Publicly traded corporations – Annual reports are sufficient if they contain detailed financial information, such as audited financial statements issued by an independent accounting firm.
  • Non-profit institutions – A letter from an inside financial officer is sufficient for large, well-established institutions. Documentary evidence of the non-profit’s financial status may be required for institutions that are not well-established.

What if we show or operate at a loss?

Many companies operate at a loss for business reasons expecting long-term results to generate revenue. If this is the case, sufficient documentation explaining the source of funding and expected profit potential can be provided. See Matter of Sonegawa – Ability to Pay.

What if we are not able or willing to provide any of the above documents?

It is a requirement to provide proof of the ability to pay the required wage. Failure to provide adequate proof will result in a denial of the I-140 Petition.

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