Key Permanent Visa Concepts: Ability to Pay

Issue - Company’s Ability to Pay Wage Offered

One important consideration in processing an I-140 petition is the ability of the petitioning company to pay the wage offered in the petition. An employer is not obligated to pay the wage offered in the I-140 petition to the foreign national employee until U.S. lawful permanent resident status is granted.

However, a petitioning company must submit copies of recent tax returns, annual reports or audited financial statements to prove its ability to pay the wage offered. A company is determined to be able to pay the wage offered if one of the following tests is satisfied:

1. The foreign national employee is already employed with the petitioning company and is being paid at least the wage offered in the I-140 petition
2. The petitioning company’s net income exceeds the wage offered in the I-140 petition to the foreign national employee
3. The petitioning company’s net current assets exceed the wage offered to the foreign national employee

A petitioning company is obligated to prove its ability to pay the wage offered from the date the foreign national employee’s “priority date” is established until the foreign national employees is granted U.S. lawful permanent residence status.