An important thing the employer should be prepared to demonstrate is the ability to pay the wage offered to the foreign national employee (called, “the proffered wage”) at the time of filing the PERM Labor Certification and to maintain such ability throughout the immigration petition process until the alien has received a green card. Although the ultimate decision on ability to pay is left to the USCIS when filing the I-140, the DOL has the right to request the employer prove ability to pay.

How to Determine Whether an Employer has the Financial Ability for a PERM Petition

If any one of the following situations is met, then the employer will be considered to have the ability to pay:

1. That the petitioner-employer paid the beneficiary the proffered wage (as evidenced by the employee’s W-2 forms) when the foreign national employee is already employed by the employer, such as with H and L visa holding employees;
2. That the petitioner’s net income was equal to or greater than the offered salary in all years under consideration;
3. That the petitioner’s net current assets are equal to or greater than the offered salary in all years under consideration. Net current assets are the difference between current assets and current liabilities.
4. If the company has more than 100 employees, then it can offer a signed statement from the company’s financial officer, certifying the company’s ability to pay the proffered wage.

Please note that the employer must show the ability to pay from the date of submission of the PERM labor certification.

Though financial documents are not required during the PERM submission, the USCIS requires financial documents during the I-140 petition process to prove the ability to pay from the date of the submission of the PERM. In some cases, the USCIS may further check the employer’s ability to pay during the I-485 adjustment status process even after the I-140 has been approved.

PERM labor certification is an extremely complicated procedure and time-sensitive. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at info@hooyou.com. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service.

(Updated 10/1/2012 by AD)

For more information on PERM Labor Certification, please refer to the following links:

PERM General Issues PERM Labor Certification Who needs PERM General Procedures for PERM Application Requirements of PERM Advertisement and Recruitment PERM Prevailing Wage determination Factors Affecting PERM Success Employer’s Financial Ability for a PERM Petition Effect of Mergers & Acquisitions Priority Date PERM Green Card Flow Chart Audit Procedures Remedies for PERM Denial Supervised Recruitment in PERM EB-2 vs. EB-3 in the PERM Process Frequently Asked Questions about PERM Process Services that We Provide Attorney’s Fees for PERM Special Handling PERM for University and College Teachers PERM Specialty Team News on PERM Labor Certification PERM Articles