Last Updated on March 21, 2023
U.S. Citizenship and Immigration Services (USCIS) has updated the USCIS Policy Manual with new guidance on how it analyzes an employer’s ability to pay wages for certain immigrant beneficiaries.
Overview
The updated guidance applies to employers who are paying wages for first, second and third-preference employment-based categories. It indicates that USCIS reviews all evidence on an employer’s financial situation and its business activities. Additionally, the guidance clarifies that employers must submit one of three forms of required evidence noted in the regulation (Annual Report, Audited Financial Statements or Federal Tax Returns), but they may also provide USCIS with additional evidence demonstrating wage payments and evidence of their financial status.
Additionally, USCIS clarifies that employers must show that they can continue to pay their workers in the employment categories noted above, beginning on the priority date of the immigrant petition.
The guidance also states that the documents required above must be submitted for each year from the employee’s priority date to filing. For larger companies with 100 employees or more, USCIS may accept a statement from a financial officer confirming the employer’s ability to pay wages for the employees noted above. USCIS also clarifies the additional evidence it will accept from employers to show their financial situation and the significance of their business activities. USCIS will generally accept payroll records from employers showing that they have paid the employee the proffered wage during the relevant time period.
Along with the guidance above, which is in Volume 6 of the Policy Manual, USCIS amended the manual’s appendix with an overview of common business forms and structures for petitioning entities that are submitting a Form I-140, Immigrant Petition for Alien Workers, or a Form I-129, Petition for Nonimmigrant Worker. The updated appendix also applies to new commercial entities that are filing a Form I-526, Immigrant Petition by Standalone Investor or a Form I-526E, Immigrant Petition by Regional Center Investor. Significantly, this appendix identifies the various tax documents that pertain to each business structure.
Looking Ahead
The guidance in Volume 6 of the Policy Manual and the appendix is effective immediately and applies to all relevant petitions filed on or after the publication date.
Envoy is pleased to provide you this information, which was prepared in collaboration with Rita Ambrosetti, who is a Managing Attorney at Global Immigration Associates (GIA), one of the two independent U.S. law firms Envoy exclusively works with on the Envoy Platform (the “U.S. Law Firms”).
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at one of the two U.S. Law Firms working with the Envoy Platform or another qualified professional. On non-U.S. immigration issues, consult an Envoy global immigration service provider or another qualified representative.
