USCIS issued policy guidance updating how it determines an employer’s ability to pay the wage being offered to the beneficiary of an immigrant visa petition (Form I-140), when the beneficiary changes employers while their I-140 is pending. Generally, employers sponsoring employment-based green cards must demonstrate their continuing ability to pay as of the I-140’s priority date until the beneficiary obtains their green card. To demonstrate their ability to pay, employers with fewer than 100 employees are required to submit annual reports, tax returns, or audited financial statements for each year from the priority date; employers with 100 or more employees may instead submit a statement from a financial officer attesting to their ability to pay.
The beneficiary of an I-140 who changes employers and whose petition has been pending for at least 180 days can “port” their petition to the new employer, so long as the new job is in a similar occupation as the original job. The updated guidance explains that, when the beneficiary of a pending I-140 ports their petition to a new employer, USCIS determines ability to pay by only reviewing facts in existence from the priority date to the time of filing—in other words, USCIS will look to the employer who filed the petition’s ability to pay. For petitions that require a Labor Certification Application (PERM), the priority date is the date the PERM was received by the Department of Labor (DOL), and USCIS will make its determination based on the facts in existence from that date to the I-140 filing date. For petitions that do not require a PERM, the priority date is the I-140 filing date, and USCIS will make its determination based on the facts in existence on that date.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the update to the ability-to-pay analysis may apply to your circumstances, please contact your team at D&S.