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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:

How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected?

According to the Labor Department:

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

NOTE: The Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher...

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

According to the Labor Department:

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.

When, during an audit, is there a 90 day suspension of the audit?

According to the Labor Department:

Under § 656.31(a), Department of Labor processing of an application, including audit procedures, may be suspended in certain circumstances. Specifically; "If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application."

Is there a date by which an employer's original application must have been filed in order to be eligible for conversion ...

Is there a date by which an employer's original application must have been filed in order to be eligible for conversion from TR to RIR?

According to the Labor Department:

Yes, applications must have been postmarked on or before March 28, 2005. This is an extension from the prior deadline and essentially includes all open TR cases in the backlog for which a job order has not been initiated.

What should I do if my case status is "Closed" but I do not believe it should be closed because I never received a 45-day ...

What should I do if my case status is "Closed" but I do not believe it should be closed because I never received a 45-day letter?

According to the Labor Department:

Please see our policy and FAQs regarding Requests for Reopening based on 45-day letters here: backlog_faqs_07-10-06.pdf (PDF, 50KB)

How long must supporting documents be retained?

According to the Labor Department:

The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.

For how long must the employer publish a notice of filing in the employer's in-house media?

According to the Labor Department:

If the employer normally recruits for similar positions in the employer's organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer's normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.

What level of detail regarding the job offer must be included in the advertisement?

According to the Labor Department:

Employers need to apprise applicants of the job opportunity. The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer’s application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.

NOTE: While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

Must the employer obtain a prevailing wage determination before the employer begins recruitment?

According to the Labor Department:

No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.

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.

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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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