The U.S. Citizenship and Immigration Services (USCIS) has issued an important update to its policy guidance. The update specifically addresses how employers must demonstrate their ability to pay the proffered wage for immigrant petitions under certain employment-based immigrant visa classifications. This includes instances when the sponsored worker is transitioning to a new employer.
For those seeking classification under the first–, second-, or third-preference employment-based immigrant visa categories that necessitate a job offer, it’s critical to understand that employers must show continuous ability to pay the promised wage to the beneficiary. This obligation extends from the priority date of the immigrant petition until the beneficiary secures lawful permanent residence.
Significantly, the updated guidance clarifies how USCIS evaluates the ability-to-pay requirement in scenarios where the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, shifts to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while their Form I-140 is still pending. In such cases, USCIS will assess whether the original petitioner meets the ability-to-pay criteria by reviewing the facts present from the priority date up to the filing of Form I-140.
Moreover, USCIS has implemented minor technical revisions to enhance clarity and readability and streamline the existing guidance. This updated policy, detailed in Volume 6, Part E, Chapter 4 of the Policy Manual, is effective immediately upon publication and applies to petitions filed on or after its release date. It builds upon prior guidance on March 15, 2023, regarding how USCIS analyzes employers’ ability to pay the proffered wage.
These updates are part of USCIS’s broader efforts to support applicants adjusting their status. Staying informed about these changes is crucial for employers and beneficiaries navigating the complexities of employment-based visas. They not only influence the petitioning process but also ensure compliance with the evolving landscape of immigration policies.
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