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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:

I need to enter the years of experience, education, or training on my ETA Form 9089. How do I do this? What if it's a range?

According to the Labor Department:

When entering the years of experience, education, or training on ETA Form 9089, the questions asking for this type of information specify the answer be provided in the number of months necessary. Therefore, if the employer requires 1 year experience in the job offered in ETA Form 9089, the number 12 (for 12 months) would be entered for the answer to Question H-6A.

However, if the employer would accept a range of experience in the job offered (such as 1 to 3 years), the employer must identify the actual minimum years/months of experience required to perform the job (please see 656.17(i) for additional information on Actual Minimum Requirements). The number that represents the Actual Minimum Requirement for the number of years/months experience would be the number entered in Question H-6A. If a range is indeed the Actual Minimum Requirement, the employer should use the low end of the range as the answer, since that represents the minimum level of requirement.

What recourse does the employer have in the event a labor certification is denied or revoked?

According to the Labor Department:

If a labor certification is denied or revoked, the employer may make a request for review to the Board of Alien Labor Certification Appeals (BALCA) by submitting, in writing and within 30 days of the date of the determination, a request to the Certifying Officer who denied or revoked the application.

Regarding "employer's being able to place the alien on the payroll" under § 656.10(c)(4)

What is meant by the "employer's being able to place the alien on the payroll" under § 656.10(c)(4)? How does it differ from having funds available to pay the alien's wage or salary in § 656.10(c)(3)?

According to the Labor Department:

The employer may be required, depending on the circumstances, to establish that the position offered is actually available at the time of the alien's proposed entrance into the United States. For example, the employer may be asked to provide evidence that a plant or restaurant, which is in the planning stage or under construction at the time the application is filed, will be completed at the time of the alien's proposed entrance into the United States. While the employer may be fiscally able to pay the alien, other circumstances, such as non-viability of the business itself, may preclude the employer from placing the alien on the payroll.

Will placing an advertisement on America's Job Bank (AJB) satisfy the "web site other than the employer's" requirement?

Will placing an advertisement on America's Job Bank (AJB) satisfy the "web site other than the employer's" additional step requirement for professional occupations?

According to the Labor Department:

Yes, but only if the placement is not being used to satisfy the job order requirement. Where the State Workforce Agency job order placement procedure consists of placement of the job order on AJB, then that job order placement can not be counted as one of the additional recruiting steps.

Can the employer include a requirement for a foreign language?

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 ...

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.

Are applications for Schedule B occupations eligible for RIR conversion?

According to the Labor Department:

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

Where and when does the employer obtain prevailing wage information?

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.

Is the employer permitted to use a wage range as opposed to a single wage rate in advertisements for the job offer?

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.

Does PERM have a provision similar to, or the same as, the Schedule B provision in the regulation in effect prior to...

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." ...

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.

Is the employer permitted to use an electronic national professional journal?

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.

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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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