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The Start-up or Small Business's "Ability to Pay" & The Employment Based Sponsorship Process

The ability to pay is often the most difficult part of the Green Card employment based sponsorship process. In this article, we briefly explore the options U.S. Employers have in order to prove to U.S. Citizenship and Immigration Services ("USCIS") that they indeed can pay the Foreign National's salary. The Department of Labor ("DOL") dictates the wage that must be paid for the position being offered by the U.S. Employer.

The following are the most common ways that a U.S. Employer can successfully meet the "ability to pay" requirements of USCIS:

  • Copies of annual reports
  • Federal Tax Returns
  • Audited Financial Statements
  • Personnel records, bank account records
  • Profit & Loss Statements
  • Written Statement from a Financial Officer (for very large and recognized organizations)

When our lawyers prepare I-140 petitions by employers on behalf of their employees, we discuss the "elastic time aspect" of the ability to pay requirement. USCIS will look at past financial history, current and future. The key periods are from the "priority date" which is given on an approved I-140. (Usually the same as the date the Labor Certification - PERM was certified by DOL).

The Department of State ("DOS") governs the availability of employment based visas for Green Cards. The agency provides a report of processing dates in the DOS visa bulletin published monthly. Depending on the employment Preference category (EB-1, EB-2, EB-3), a Foreign National employee could have wait times ranging from 2-4 years on average. This means that a sponsoring employer must be able to show the ability to pay the proffered wage from the priority date until the Green Card is approved.

For start-up companies, which our firm works with extensively, we strategically create a plan to meet the "ability to pay" requirements through a combination of accepted financial evidence. Start up organizations, or new companies under 5 years in existence often face unique challenges; but an experienced business immigration attorney can assist new businesses to be successful through careful planning.

You may contact our office to set up an appointment to meet with an employment or business immigration attorney. We have different offices locations based in the Washington D.C. area (DC,MD,VA) and in other states which are available at www.scottcclaw.com.

All of our attorneys are members of the American Immigration Lawyers' Association ("AILA"). Vassell & LeeRC Law Group

www.scottcclaw.com

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