A May 4, 2004 memorandum from William R. Yates, Associate Director for Operations, U.S. Citizenship and Immigration Services (USCIS), discusses how USCIS adjudicators should make determinations regarding an employer's ability to pay the offered wage on I-140 immigrant visa petitions.  The memo also sets forth when it is appropriate for USCIS to issue a Request for Evidence (RFE) for financial documentation on I-140 petitions.  The memorandum appears to supplement another USCIS memorandum that Mr. Yates issued on the same day, which discussed general circumstances under which adjudicators may deny an application without first issuing an RFE.

Of interest is the fact that Mr. Yates notes that an internal review of USCIS practices showed that adjudicators have "unnecessarily" issued RFEs questioning an employer's ability to pay the wage prior to issuing a final decision on an application.  Mr. Yates further notes that this practice has resulted "in a process that significantly affects limited USCIS resources, increases processing delays, and confuses petitioners and applicants."

As part of USCIS's ongoing backlog reduction initiatives, USCIS plans to amend the relevant regulations at 8 CFR 204.5(g)(2) regarding employer's provide evidence of their ability to pay the wage on the I-140.  The memorandum serves to provide guidance to adjudicators until such new regulations can be issued.

If Record on Ability to Pay is Incomplete - RFEs Should be Issued

The memorandum offers procedural guidance as to when an adjudicator officer shall issue an RFE on the employer's ability to pay the proffered wage: (1) when certain information on Form I-140 is incomplete, specifically the date the employer was established, the employer's current number of employees, the employer's gross annual income or the employer's net annual income; or (2) when the application does not include at least one of three required documents set forth in the regulations to establish ability to pay, i.e., an annual report, tax return, or audited financial statement.

If Record on Ability to Pay is Complete - Adjudicators Have Discretion to Make Decisions on the Record

If all required information is included on the I-140 and the employer has submitted at least one of the documents required by the regulations as evidence of ability to pay, the adjudicator may make a decision and is not required to issue an RFE for further documentation of ability to pay.

Adjudicators should make a positive ability to pay determination on an I-140 under the following circumstances:

• The petitioner's net income is equal to or greater than the proffered wage;
• The petitioner's net current assets are equal to or greater than the proffered wage; or
• The employer submits credible, verifiable evidence that the petitioner is both employing the beneficiary and has paid or is currently paying the proffered wage.

Alternatively, if the required initial evidence does not support a determination that the employer is able to pay the offered wage, the USCIS adjudicator may deny the petition because the employer has not met its burden of establishing eligibility for the requested benefit.

Adjudicators are Not Required to Accept Financial Statements or Additional Financial Evidence

The memo reminds USCIS adjudicators that while employers may submit a financial statement or other financial evidence in lieu of the required initial evidence, acceptance of certain types of financial evidence is at the discretion of the adjudicator.  In particular, adjudicators are not required to accept, request or issue RFEs for financial statements from U.S. employers who employ 100 or more workers.  Further, adjudicators are not required to accept, request or issue RFEs for supplemental financial evidence (such as profit and loss statements, bank account records or personnel records), regardless of the size of the employer.

Should the adjudicator exercise his or her discretion to accept financial statements or additional financial evidence, that evidence must clearly establish the employer's ability to pay.  If the adjudicator has any doubts as to whether the evidence shows the employer is able to pay the wage, the adjudicator may deny the case without issuing an RFE requesting additional documentation to further clarify the discretionary evidence that was accepted.

© 1999-2012, Jackson & Hertogs - All rights reserved