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May petitioners submit ALTERNATIVE evidence to establish the employer's ability to pay?

Petitioners may submit alternative evidence to establish the employer's ability to pay the proferred wage; however, the USCIS is NOT required to accept the alternative evidence. Some of the key rules regarding alternative evidence are summarized in the following statement from a USCIS Memorandum:

What are the THREE PRIMARY TESTS which the USCIS uses to MEASURE the employer's ability to pay?

Related topics:

The USCIS adjudicators are required to make a positive ability to pay determination in anyone of the following circumstances:

  1. NET INCOME: The initial evidence reflects that the petitioner's net income is equal to or greater than the proffered wage.
  2. NET CURRENT ASSETS: The initial evidence reflects that the petitioner's net current assets are equal to or greater than the proffered wage.
  3. EMPLOYMENT OF THE BENEFICIARY: The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage.

This is according to a USCIS Memorandum, by William R. Yates, Associate Director for Operations, Determination of Ability to Pay under 8 CFR 204.5(g)(2), dated May 4, 2004.

What is the PRIMARY evidence that the USCIS looks to in determining the employer's ABILITY TO PAY?

The PRIMARY evidence that the USCIS looks to in determining the employer's ABILITY TO PAY is the following:

  1. In cases involving employers which employ less than 100 workers, the primary evidence consists of ANNUAL REPORTS, FEDERAL TAX RETURNS, or AUDITED FINANCIAL STATEMENTS, OR
  2. In cases involving employers which employ 100 or more workers, the employer may provide a STATEMENT from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage.

Employer's “Ability to Pay” in Green Card cases

All U.S. Permanent residency (“green card”) petitions filed by or for an employment based immigrant, which require an offer of employment, MUST BE accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage. This section of this website addresses various issues related to the employer's “ability to pay”.

Common Issues relating to Employment Based Green Cards

This section addresses various issues which are common to to Employment Based Green Cards.

List of "Active" EB-5 Regional Centers

For EB5 Investors, investing in "Regional Centers" provides key advantages. We have compiled a list of "Active" EB5 Regional Centers.

What are the Special Regional Center Provisions?

SPECIAL REGIONAL CENTER PROVISIONS

Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”

A "Regional Center:"

What are the Key Requirements for obtaining an EB-5 green card?

EB-5 KEY REQUIREMENTS

In general, EB-5 "eligible individuals" include those:

Must the required 30 day job order timeframe end at least 30 days prior to filing?

According to the Labor Department:

Yes, the 30 day job order timeframe must end at least 30 days prior to filing. While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.

Is the employer permitted to accept alternative job experience/qualifications?

According to the Labor Department:

Yes, an employer may specify alternative experience or qualification requirements, provided the alternative requirements and primary requirements are substantially equivalent to each other with respect to whether the applicant can perform the proposed job duties in a reasonable manner. As discussed in the preamble to the final regulation, this is the standard developed by the Board of Alien Labor Certification Appeals in Matter of Francis Kellogg.

NOTE: Even when the employer's alternative requirements are substantially equivalent, but the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, the alternative requirements will be considered unlawfully tailored to the alien's qualifications unless the employer has indicated on the application that applicants with any suitable combination of education, training or experience are acceptable.

Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) if the employer is filing an...

Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?

According to the Labor Department:

Yes, a prevailing wage determination must be obtained from the SWA even if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision. The attestation provision of the PERM regulation requires the employer certify that the offered wage equals or exceeds the prevailing wage determined pursuant to the prevailing wage provision which, in turn, requires the employer to obtain a prevailing determination from the SWA having jurisdiction over the proposed area of intended employment.

In the event of an audit, can an application be withdrawn?

According to the Labor Department:

An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.

Who may request RIR conversion?

According to the Labor Department:

The employer, or its designated attorney or agent, may file the request for RIR conversion.

Aliens are not eligible to request conversion, and the Backlog Elimination Centers (BECs) will not respond to such requests.

When must applications be signed?

According to the Labor Department:

Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

NOTE: Where the employer provides a copy of an application to a Certifying Officer pursuant to an audit or otherwise, the copy must be signed.

Could publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required?

Could the publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?

According to the Labor Department:

No, posting of the notice of filing on in-house media, including an "Intranet," can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.

What documentation must the employer file when seeking a Schedule A labor certification for a professional nurse?

According to the Labor Department:

The employer must file, as part of its labor certification application, documentation the alien meets one of three requirements: the alien has a Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate, the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

NOTE: Unlike the filing requirements under other PERM provisions, for Schedule A occupations, the employer is required to submit the applicable documentation when the employer files the application with the appropriate Department of Homeland Security office.

In order to establish a "pattern of recruitment," which date is used as the reference point -- the date the original ...

In order to establish a "pattern of recruitment," which date is used as the reference point – the date the original application was received or the date the RIR conversion request is received?

According to the Labor Department:

The point of reference for the pattern of recruitment is based upon the date the RIR conversion request was received. In other words, the earliest acceptable published advertisement or other recruitment activity must have occurred within six months prior to the date the RIR conversion request was received by the BEC. Earlier advertisements or other recruiting activities will not be considered by the BEC in determining whether a pattern of recruitment has been established.

What is Schedule A and who qualifies?

According to the Labor Department:

Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of aliens in those occupations. An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the alien's qualifications meet the provision's requirements.

What is revocation?

According to the Labor Department:

If the granting of a labor certification is found not to be justified, whether based on unintentional or willful conduct of the employer, a previously approved labor certification will be revoked.

I entered my case number but no case information was found. What should I do?

According to the Labor Department:

First, check to make sure you entered the correct case number. Even a slight variation from the correct number can cause no case information to be found. If you are sure you entered the correct case number and no case information is found, contact the appropriate BEC that has your case at info@dal.dflc.us or info@phi.dflc.us.

Search for H1B Visa Employers

You can search for "H1B Visa Employers" using this database, which was compiled by Antao & Chuang, Attorneys at Law from government sources. This database identifies those U.S. employers who have filed for H-1B visas in the past, or who have at least started the process by filing for the LCA. If you find an employer you are interested in, you can then contact them to inquire as to whether they have any current job openings in your field. Please tell your friends about this valuable resource.

Use this form to search for H1B Visa employers.

"FMG Friendly" Employers

Foreign Medical Graduates ("FMGs") should be aware that there are "FMG Friendly" employers, and "FMG Unfriendly" employers. This database (compiled by Antao & Chuang, Attorneys at Law from government sources) identifies those U.S. employers who have filed for H-1B visas for foreign medical graduates in the past (or at least started the process by filing for the LCA), and who can therefore be deemed "FMG Friendly". Please tell your colleagues about this valuable resource.

Use this form to search for "FMG Friendly" employers in a given state.

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