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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:

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.

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.

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”.

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

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

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:"

EB-5 KEY REQUIREMENTS

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

According to the Labor Department:

No, under existing regulations, Schedule B applications are not eligible for the RIR process.

According to the Labor Department:

Yes, the employer can include a foreign language requirement if it is justified by business necessity. The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employer's customers, contractors, or employees who can not communicate effectively in English. Documentation necessary to establish such a business necessity is noted in § 656.17(h)(2).

NOTE: Needing to communicate with co-workers or subordinates who can not effectively communicate in English and/or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement.

When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

According to the Labor Department:

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.

Does PERM have a provision similar to, or the same as, the Schedule B provision in the regulation in effect prior to March 28, 2005?

According to the Labor Department:

No, the former regulation's Schedule B provision has been eliminated; there is no similar provision in PERM.

The message on my Corrections List states, "The Employer's name/address is not the same on Form ETA 750 Part A and Part B." What do I need to do?

According to the Labor Department:

Please refer to item 6 on Form ETA 750 Part A and item 8 on Form ETA 750 Part B. These items must match exactly on your application. Initial and date any corrections you make on your application and return it to the appropriate Backlog Processing Center.

According to the Labor Department:

No, the employer can not use an electronic national professional journal. The employer must use a print journal whether to satisfy the provision permitting the use of a journal as an alternative to one of the Sunday advertisements or to satisfy the provision requiring an advertisement in a journal under optional special recruitment procedures for college and university teachers.

According to the Labor Department:

Prior to filing the Application for Permanent Employment Certification, ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET(OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

NOTE: The SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.

According to the Labor Department:

Yes, the employer may advertise with a wage range as long as the bottom of the range is no less than the prevailing wage rate.

According to the Labor Department:

Certifying Officers have the authority to revoke an approved labor certification for fraud and willful misrepresentation, obvious errors, or for grounds or issues associated with the labor certification process.

According to the Labor Department:

No. Due to the Office of Foreign Labor Certification's (OFLC) intensive effort to eliminate the backlog, it is not practical for the BEC to delay recruitment on applications to await RIR conversion requests. Therefore, BECs will not delay recruitment to allow for RIR conversion. Requests for RIR conversion must be received prior to the beginning of supervised recruitment to be considered. Employers should send their requests and appropriate documentation as soon as possible to maximize their opportunity for RIR conversion.

Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?

According to the Labor Department:

Yes, if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation.

NOTE: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking "yes" to question A-1, is deemed to be a withdrawal of the original application.

NOTE: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28, 2005, the employer is prohibited from refiling the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and refile.

I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?

According to the Labor Department:

Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor's regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.