The USCIS released a May 4, 2004 memo that provides instructions
for service center adjudicators concerning determinations of a prospective
U.S. employer's ability to pay the proffered wage in the context of
certain employment-based immigrant visa petitions.
The memo guides adjudicators on when a request for evidence (RFE) is
not required or should not be issued.
The memo acknowledges that in certain instances adjudicators
unnecessarily issue an RFE questioning an employer's ability to pay
prior to making a final decision on a
petition. It is unclear how this practice evolved, and it has resulted
in a process that significantly affects limited CIS resources, increases
processing delays, and confuses petitioners and applicants.
As part of its backlog reduction initiatives, USCIS plans
to amend the regulations at 8 CFR 204.5(g)(2) with respect to the requirement
that certain employment-based visa petitioners provide evidence of their
ability to pay the proffered wage. In the interim, however, this memorandum
provides guidance to adjudicators when making an ability to pay determination.
Procedural Guidance
Any petition filed by or for an employment based immigrant,
which requires an offer of
employment, must be accompanied by evidence that the prospective U.S.
employer has the ability to pay the proffered wage. A petitioner must
file a fully completed Form 1-140 along with initial evidence establishing
its ability to pay the beneficiary the proffered wage. Required initial
evidence, as specified under 8 CFR 204.5(g)(2), includes copies of:
(1) annual reports, (2) federal tax returns, or (3) audited financial
statements. The petitioner must submit a copy of at least one of these
required documents. USCIS adjudicators are instructed to take the following
steps when making a determination of a petitioner's ability to pay in
the context of adjudicating the Form 1-140:
. Incomplete Form 1-140
USCIS adjudicators should review Form 1-140 for completeness. If the
following sections of Part 5 of Form 1-140 are incomplete, issue an
RFE: date established, current number of employees, gross annual income,
net annual income.
. Missing Initial Evidence
USCIS adjudicators should review the file for missing initial evidence.
If the record does not contain one of the three required documents (annual
report, tax return, or audited financial statement), issue a request
for evidence.
. Decision on the Record
An applicant or petitioner must establish eligibility for the requested
benefit. If the record is complete with respect to all of the required
initial evidence, USCIS adjudicators are not required to issue an RFE
to obtain further documentation to support a decision based on the record
or establish the petitioner's ability to pay. USCIS adjudicators should
make a positive ability to pay determination in anyone of the following
circumstances:
(1) Net income
The initial evidence reflects that the petitioner's net income is equal
to or greater than the
proffered wage.
(2) Net current assets
The initial evidence reflects that the petitioner's net current assets
are equal to or greater
than the proffered wage.
(3) Employment of the beneficiary
The record contains credible verifiable evidence that the petitioner
not only is employing
the beneficiary but also has paid or currently is paying the proffered
wage.
If the required initial evidence does not establish ability
to pay, the USCIS adjudicator may deny the petition since the petitioner
has not met his or her burden to establish eligibility for the requested
benefit.
. Financial Statements and Additional Financial Evidence
In certain instances, petitioners may submit a financial statement in
lieu of initial evidence and/or additional evidence such as (1) profit/loss
statements, (2) bank account records, or (3) personnel records. Under
8 CFR 204.5(g)(2), CIS adjudicators are not required to accept, request,
or RFE for a financial statement from U.S. employers who employ 100
or more workers to establish ability to pay. Further, regardless of
the number of employees the petitioner's employs, CIS adjudicators are
not required to accept, request, or RFE for additional financial evidence.
Acceptance of these documents by CIS is discretionary. Therefore if
the required initial evidence is submitted and does not establish the
petitioner's ability to pay, CIS adjudicators may deny the petition.
If the case is denied, the petitioner may file an appeal or a motion
to reopen or reconsider in
accordance with 8 CFR 103.3 and 103.5.
If the CIS adjudicator exercises discretion to accept
either the financial statement or additional financial evidence, that
evidence must clearly establish the petitioner's ability to pay. If
the CIS adjudicator has any doubts about whether the additional documents
establish the petitioner's ability to pay, the CIS adjudicator may deny
the petition and not RFE for additional evidence to further clarify
the discretionary evidence that was accepted.
Denials
Adjudicating officers must evaluate records of proceeding
in their entirety and are required by regulation to clearly explain
the specific reasons for denial. Denials should be written with sufficient
specificity to withstand judicial scrutiny and must include proper notice
of any applicable appeal process to the applicant or petitioner.
Fraud Detection Unit Referrals
If the adjudicating officer doubts the veracity of the
required evidence contained within the record, the case should be forwarded
to the local Fraud Detection Unit (FDU) for review. The adjudicating
officer must have articulable reasons for questioning the legitimacy
of the document. FDU will provide advice on appropriate next steps.
