现在是这一二十年来经济萧条最严重的一次。因为我们有很多公司型的客户，所以感受
到的经济上的困境中其严重。很多公司必须要解雇H-1B，甚至于PERM或I-140申请当中
的人。上星期我们曾经写过一篇有关H-1B公司薪水的问题。现在我们就Ability to pay
做了更深入的研究，希望对大家有所帮助。
Ability to pay is an important aspect of all employment-sponsored green card
cases. Essentially, the concept is that, in order for an employer to be in
the position to offer a job, that employer must have the financial
capability to pay the wages being offered for the position. The economic
downturn that began in 2001 has not yet reversed. Many I-140 petitioners
have shown losses in their financial records that at first glance may not
appear to support a favorable USCIS decision. In turn, adjudicators began to
closely scrutinize the ability to pay component in I-140 petitions by
generating detailed RFEs to allow petitioners to show their financial
viability. Immigration regulations have, for a long time, required that
employers, who petition alien workers for permanent residence, prove that
they have sufficient income to pay the salary offered in the petition and
labor certification. Proof of the employer’s ability to pay the offered
salary must run from the date the labor certification is filed, or priority
date is established, all the way up until a decision is rendered on the
immigrant visa petition. For years, the former INS did not interpret this
regulation very strictly and most petitions were approved. However, in the
last couple of years, the USCIS has taken a much firmer stance on
interpreting this regulation and as a result a higher percentage of visa
petitions are facing denial for inability to pay.
When petitioning a foreign worker for permanent residence, the regulation
states that the employer shall prove the “ability to pay” the salary
stated on the immigrant visa petition from the date the priority date is
established up until the time of adjustment of status or immigration. It
means that the employer must prove sufficient income to pay the foreign
worker the wages stated in the labor certification from the time it was
first filed with the Department of Labor up until the time the petition is
finally adjudicated. Mostly this time period stretch to three years to more.
The regulation also asserts that the employer shall prove ability to pay
the salary by submitting federal tax returns or audited financial statements
. In appropriate cases, additional evidence, such as profit/loss statements,
bank account records, or personnel records, may be submitted by the
petitioner or requested by the Service.
The PRIMARY evidence that the USCIS looks to in determining the employer's
ABILITY TO PAY is the following:
* 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
* 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.
· In appropriate cases, additional evidence, such as profit/loss
statements, bank account records, or personnel records, may be submitted by
the petitioner or requested by the Service.
USCIS ISSUES MEMORANDUM ADDRESSING “ABILITY TO PAY”
The USCIS has recently issued an interoffice memorandum providing guidance
to adjudicators regarding addressing "ability to pay" issues within the
context of I-140 employment-based immigrant petition cases. Specifically,
the interoffice memorandum provides guidelines to adjudicators regarding
when Requests for Evidence (RFE) are not required to be issued or should not
be issued with respect to "ability to pay" determinations.
A Form I-140 immigrant petition filed pursuant to an offer of employment
must be accompanied by documentation that reflects that the prospective U.S.
employer/petitioner has the ability to pay the proffered wage. The
prospective U.S. employer/petitioner must file a completed Form I-140 along
with initial evidence that demonstrates that the U.S. employer/petitioner
can satisfy the ability to pay requirement. The interoffice memorandum
indicates when an adjudicator is reviewing an I-140 file. The following
three points were clarified and elaborated in memorandum:
(1) If a record on ability to pay is not complete, an RFE should be issued:
In Yates's memorandum, it was stated that an adjudicator should issue an RFE
when certain information on Form I-140 is incomplete, including the date
the employer was established, the employer's current number of employees,
and their gross or net annual income. An RFE should also be issued when
applications do not include at least one of three required documents that
establish the employer's ability to pay the proffered wage.
(2) If a record on ability to pay is complete, adjudicators have the
discretion to make decisions based on the provided record:
If the petitioning employer has included all required information on Form I-
140 and has submitted at least one of the three required documents that
establish the employer's ability to pay the proffered wage, the adjudicator
has the right to make a decision based solely on that information. An RFE
for further documentation of ability to pay is not required.
Adjudicators may make a positive decision regarding an employer's ability to
pay 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
· Credible and verifiable evidence is provided by the employer that shows
that the employer is employing the beneficiary and is currently paying (or
has paid) the proffered wage.
If the provided evidence does not support a decision that the employer can
afford to pay the proffered wage, the adjudicator may deny the petition,
based on the fact that the employer has not been able to establish
eligibility for the I-140 Visa.
(3) Adjudicators are not required to accept financial evidence:
While employers are allowed to submit financial statements/evidence instead
of required initial evidence, the acceptance of this information as proof of
ability to pay is at the discretion of the individual adjudicator.
Adjudicators are not required to accept, request or issue RFEs for financial
statements from US employers of 100 or more workers. In addition,
adjudicators are not required to accept, request or issue RFEs for
supplemental financial evidence from any employer, regardless of their
business size.
If the adjudicator does choose to accept financial statements/evidence, the
provided evidence must clearly establish the employer's ability to pay the
proffered wage. If there are any doubts to this, the adjudicator may deny
the case without issuing an RFE to request further documentation of ability
to pay.
The interoffice memorandum states that if one of the three requisite
financial documents is submitted with the I-140 and does not reflect that
the prospective U.S. employer/petitioner has the ability to pay the
proffered wage, the USCIS adjudicator may deny the I-140 petition without
issuing a RFE. However, the memorandum also indicates that in certain
instances, petitioners may be able to submit other financial documents in
lieu of the aforementioned initial evidence used for "ability to pay"
determinations. These other financial documents may include (1) profit/loss
statements, (2) bank account records, or (3) personnel records. However,
acceptances of the aforementioned documents are discretionary. If the USCIS
adjudicator accepts the aforementioned documents are discretionary. If the
USCIS adjudicator accepts the aforementioned financial documentation in lieu
of the "initial evidence" previously mentioned, the evidence must clearly
establish the petitioner's ability to pay the proffered salary before the I-
140 can be approved. If there is any doubt as to whether the alternate
financial document establishes "ability to pay," the adjudicator is
authorized to deny the I-140 without first issuing a RFE.
If an I-140 is denied, the denial must clearly explain the reasons for the
denial and must include notification of any applicable appeals process to
the applicant or petitioner.
Prior to issuance of this memo, petitioners had the option to demonstrate
financial ability by submitting bank statements for each calendar year,
beginning in the year the priority date was established and continuing
onward. The average of the ending bank balance in a 12-month period, added
to the beneficiary’s paid wages, net income or net assets, can prove
financial ability. Petitioners have also used profit/loss statements and
personnel records to show available cash flow and ability to meet their
payroll obligations. In today’s economy, it is unrealistic to expect a
single financial document to establish a petitioner’s ability to pay
without permitting a petitioner the opportunity to provide additional
evidence as the regulations allow.
THE MAIN OBSTACLE
The problem that arises is that often the employer’s tax returns reflect
little income which may be insufficient to justify the salary offered to the
alien worker. The cause often is competing interests: the employer wants
to show as little income on its tax returns to avoid a large tax bill
whereas the alien worker wants the employer to show the most income on its
tax returns to have the highest chance of success on the visa petition.
With liberal depreciation, deductions for business expenses, lost accounts
receivable and the like, tax returns frequently do not adequately depict the
true financial health of the petitioning company. In some cases, in fact,
the USCIS, does not even discount depreciation although it is a paper-loss,
non cash flow item that reduces an employer’s taxable income. As a result
the USCIS at times denies visa petitions claiming employers lack sufficient
income to pay the offered salary.
The denial rate appears to be rising.
ALTERNATIVE WAY
There are alternative ways to support a petition for immigrant visa for a
worker. In addition to a tax return, the employer may also wish to prove
ability to pay by showing that the foreign worker is already working for the
petitioner and earning the proffered salary. Obviously, if the employer is
already paying the worker, he has the ability to pay the offered salary.
Secondly, the employer could show proof of its assets to prove that it has
enough available funds to pay the salary. Quite often businesses have
substantial hard assets such as real estate, machinery, inventory and the
like. These should be considered by the USCIS. Finally, the employer may
have substantial bank account balances or even a large credit line or loan
that could be drawn upon to pay the offered salary. These items too, should
be brought to the attention of the USCIS examiner if there is any doubt
raised by weak tax returns.
If a petition is denied for lack of ability to pay, there is a right to
appeal to the Administrative Appeals Office in Washington. D.C. An appeal
can take as long as one year to decide. If an appeal is denied, the final
review rests with the local Federal District Court. An appeal from a
petition denial can be won if it can be shown that the denial was in error
and that the employer really does have the ability to pay the offered wage.
Under the new PERM program, proving the employer’s ability to pay may not
be as onerous. Since PERM is adjudicated so quickly, (60 days or less,),
the employer may only need to submit one year’s tax return or just
financial statements if taxes have not yet been filed. If the employer does
not possess sufficient income to pay the offered salary, it is not as
onerous to refile another PERM application since it is adjudicated some
rapidly. Refiling a new labor certification may be a viable option if your
first petition is denied due to inability to pay.
CASE LAW
A review of the ability to pay case law reveals that a totality of the
circumstances is generally the standard used. The Ability to Pay Memo also
disregards Matter of Sonegawa, the seminal case on this issue. Sonegawa
allows an employer to show ability to pay if it has a reasonable expectation
of future financial profit, such that the ability to pay the proffered wage
is fulfilled upon the alien obtaining permanent residence. Thus, an
employer’s expectations of future financial profit are reasonable if:
· an employer shows it has been making a living and employing
people without any evidence of financial difficulties;
· the employer establishes that it incurred unusual expenses in the
year of filing that temporarily worsened its financial situation;
· the employer shows a significant increase in income in the years
subsequent to the filing of the petition as established by relevant
professionally prepared financial documents.
Since the issuance of the Ability to Pay Memo, USCIS has denied Form I-140
petitions without RFEs citing the three options of the Ability to Pay Memo.
Yet, in other cases, USCIS has relied on K.C.P. Food Co., Inc. v. Sava, in
support of its contention that the petitioner’s tax return did not
establish its ability to pay the proffered wage. The issues in K.C.P. Food
were whether the petitioner had ability to pay and whether the Associate
Commissioner’s interpretation of petitioner’s corporate tax return was an
abuse of discretion. The main problem with the petitioner in that case was
his failure to present all the available financial documents and analysis
thereof at the administrative appellate level. Based on the record before
the U.S. district court, the judge found no abuse of discretion in that the
petitioner’s corporate tax return did in fact show that it did not have the
ability to pay the proffered wage. USCIS has been using this case as its
authority for denying I-140 petitions on the basis that the corporate tax
return does not clearly show ability to pay. However, K.C.P. Food Co., Inc.
v. Sava, was decided in 1985, while the Ability to Pay Memo directing USCIS
officers to consider present payment of the proffered wage, was issued on
May 4, 2004. K.C.P. Food Co., Inc. v. Sava, also did not deal with the
situation involving an employee who is already on the payroll of the
employer. Even in dicta, the court in this case said, citing Sonegawa, that
had the petitioner showed the supplementary evidence he attempted to submit
at the federal review level, the outcome might have been favorable.
These cases should be used contrast to the Ability to Pay Memo and the
recent decisions. Recent non precedent decisions from the Appeals
Administrative Office (AAO) should be used as guidance to determine a
petitioner’s ability to pay. For instance, the AAO has indicated that wage
reports showing that the person was actually paid during the year when labor
certification was filed can be a source of proof that the petitioner has
the ability to pay the proffered wage. In another AAO decision, it was held
that DHS must consider the normal accounting practices of the company even
if the ability to pay is not reflected in the tax returns. A beneficiary’s
ability to generate income can be used when determining a petitioner’s
ability to pay. Pledged funds to petitioner can be considered as part of
ability to pay. If the petitioner is a sole proprietorship, the proprietor’
s individual assets can be considered toward ability to pay. All these cases
show that a totality of the circumstances test has always been the way to
judge the complex ability to pay issues.
Notwithstanding the Ability to Pay Memo, this writer urges practitioners not
to be discouraged by its narrow purview. Every case that does not clearly
fit under the strict regulatory interpretation in the memo should be
analyzed and presented to USCIS using some or all of the suggestions
presented above. Practitioners ought to continue to advocate a totality of
the circumstances test as the unified standard of review in ability to pay
cases. As illustrated in this article, such a standard of review allows a
more encompassing and realistic method of evaluating a company’s financial
health. An employment-based immigrant petition is, in essence, an offer of
future employment. The petitioner is not obligated to pay the proffered wage
until the beneficiary’s legal permanent residence is granted. Therefore,
because the language of the regulation allows a wide range of time (from the
establishment of the priority date to the grant of permanent resident
status) to show ability to pay, flexible methods of evaluating a petitioner
’s financial ability should be used. Practitioners are strongly advised to
document petitioner’s ability to pay using both required and discretionary
evidence to prevent denials without RFEs. Because USCIS is going full
throttle on backlog reduction, each case should be prepared with the
assumption that no RFE will be issued. Therefore, the strongest possible
case should be presented, as a matter of course, at the initial filing.
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