A sponsoring employer should be prepared to demonstrate its ability to pay the wage being offered, which is also known as the “proffered wage,” to the alien worker at the time it files its PERM labor certification application. Further, the employer must show that it can continue to pay the proffered wage during the immigration petition process, i.e. until the foreign beneficiary has received a green card.
Although U.S. Citizenship and Immigration Services (USCIS) makes the final determination on an employer’s ability to pay the proffered wage when the employer files a Form I-140, the U.S. Department of Labor (DOL) also has the right to request proof that the employer has the requisite financial ability.
Determining Financial Ability for PERM
A petitioning employer will be considered to have the requisite financial ability if it satisfies at least one of the following. (Note that every employment-based petition requiring proof of the employer’s ability to pay must include at least one of the below items.)
According to a USCIS memorandum commonly referred to as the Yates Memo, an adjudicating officer can make the discretionary determination that an employer has the ability to pay through any of the following:
-For example, say a beneficiary’s proffered wage is $70,000, and the employer’s net income is $50,000. Currently, however, the beneficiary is being paid $25,000. The employer in this situation can combine net income with the beneficiary’s current salary to satisfy the ability to pay $70,000.
Though financial documents are not required at the time of PERM submission, during the I-140 petition process, USCIS does require financial documents proving the employer’s ability to pay at the time it originally filed its labor certification application. In some cases, USCIS may additionally check the employer’s ability to pay during the I-485 adjustment of status process, even after an I-140 petition has been approved. Given the complexities of proving the ability to pay, it is important for employers to solicit the services on an experienced PERM attorney.
Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.
For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links: