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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:

The Selection of Continuation Option Letter may be signed and submitted by either the employer or the employer's attorney/agent of record. We request, however, that employers and attorneys coordinate to determine who will submit the Selection of Continuation Option Letter to ensure that the appropriate Backlog Processing Center does not receive conflicting or duplicate responses. In the instance of conflicting responses, we will default to the employer's response.

According to the Labor Department:

As explained in an earlier FAQ on this subject, if the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing following the procedure below, must be sent to the National Processing Center to which the application was originally submitted.

In the event employers are unable to withdraw electronically as stated above, employers should send a withdrawal request by e-mail to the appropriate National Processing Center at: PLC.Chicago@dol.gov (for Chicago) or PLC.Atlanta@dol.gov (for Atlanta). To ensure your request is processed expeditiously, please include the following information in the e-mail request:

• Show the words "Withdrawal Request" and the employer’s name in the subject line of the e-mail
• In the body of the e-mail, include the following information:
  • Case Number
  • Employer's Name
  • Employer's EIN
  • The reason for withdrawal
  • Name and title of individual requesting withdrawal

Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?

According to the Labor Department:

Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

According to the Labor Department:

Yes, while the employer may choose to recruit for college and university teachers under the basic process, the employer may choose to recruit under § 656.18, optional special recruitment and documentation procedures for college and university teachers.

NOTE: The employer must support hiring of the alien by documenting that the alien was found to be more qualified than each U.S. worker who applied for the job opportunity.

According to the Labor Department:

There are several possible reasons an employer or their attorney might not have heard anything from the BEC about the case. Some examples include, but are not limited to: 1) the State or Regional office may have disposed of the case prior to shipping and the applicant did not receive notification; 2) The State or Regional office may have inadvertently not shipped the case to the BEC; 3) the BEC may have attempted to contact the applicant but the contact information was incorrect; or 4) the BEC inadvertently omitted the case during data entry.

The United States Citizenship and Immigration Services (USCIS) has posted, or will soon post, a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?

According to the Labor Department:

Yes, an employer may use the posting sample of a Notice of Filing issued by the USCIS and such a posting will be honored by the Department of Labor (DOL) provided that the Notice of Filing complies with all Department of Labor regulatory requirements. DOL worked with USCIS to develop the sample posting as a customer service convenience. DOL will honor the use of the sample, but is not requiring use of the sample. Employers may use other forms as long as they comply with the regulations.

According to the Labor Department:

No, the alien does not need to have a bachelor's or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employer's willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.

According to the Labor Department:

Yes, a prevailing wage determination must be requested from the SWA having jurisdiction over the proposed area of intended employment.

According to the Labor Department:

Because RIR applications do not undergo the same recruitment process, these applications generally reach final resolution (certification or denial) in significantly less time than TR applications. Therefore, it is often to the employer's advantage to convert applications from TR to RIR

If I send in the required information about my case, will I have to respond to a Center Receipt Notification Letter (CRNL) indicating that I want to continue?

According to the Labor Department:

If the information you provide is sufficient to reconstruct the case, you will not have to respond to a CRNL as the request about the case will be taken as proof of a desire to continue. However, if information is missing that is required to continue processing, you may receive a CRNL with a corrections list of information required to continue processing. You should respond to this letter within the 45-day timeframe.

If the employer's job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), must the employer use the DBA or SCA?

According to the Labor Department:

No, the employer is not required to use a wage determination under the DBA or the SCA but may choose to do so.

According to the Labor Department:

In submitting a PERM application, the employer declares that it has read and reviewed the application and that the information contained in the application is true and accurate. The employer is responsible for ensuring the PWD information provided by the SWA and entered on ETA Form 9089 is correct and for taking steps to obtain corrected PWDs from the SWA as needed.

We are aware there have been some issues with Prevailing Wage Determinations (PWD) provided by some SWAs, such as incorrect SOC codes or validity periods. Currently, we are working with all SWAs to ensure the new regulation and state requirements are clearly understood and implemented.

To address denials based on SWA errors during the first months of implementation of the PERM regulation, the Department has developed the following option for employers. If you have an application that was denied due to an error associated with an incorrect or incomplete PWD, and the application was submitted before March 25, 2006, you may submit a request for review to the appropriate Certifying Officer. The request for review must include a copy of the corrected PWD provided by the SWA or a copy of the initial PWD obtained from the SWA together with an explanation of how it should be corrected.