USCIS Policy Updates Regarding “Ability to Pay” and Changing Employers during a Pending Adjustment of Status Petition

On January 5, 2024, the U.S. Citizenship and Immigration Services (USCIS) issued an updated policy guidance on the "ability to pay" requirement for immigrant petitions in certain employment-based visa classifications (i.e., EB-1, EB-2, and EB-3 preference categories). The “ability to pay” can be determined by showing that the U.S. employer has either been employed and paid the beneficiary an amount that is at least equal to the required wage already, or in the case of the beneficiary changing employers, the U.S. employer is willing and able to pay the required wage to the beneficiary.

Primary Points:

1. Continued Ability to Pay: Employers seeking to classify employees under certain employment based-immigrant visa classifications must prove their ability to pay the proffered wage starting from the filing/priority date of the immigrant petition (or PERM alien labor application filing date, if applicable) until the beneficiary attains lawful permanent residence.
   • This clarification should help petitioners be prepared to provide to USCIS employer/petitioner documentary evidence of ability to pay the underlying immigrant petition wage offer amount covering the period starting from the filing priority date of the PERM ETA 9089 alien labor application or through the filing of I-140 immigrant petition (if no PERM is required).
   • If the employer is not willing or able to provide such proofs to support the beneficiary and job change, then the beneficiary may need to think twice before joining the new employer.
2. While I-140 Is Pending: USCIS’ updated guidance clarifies the process when a beneficiary changes jobs (or ports) to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while the Form I-140 (Immigrant Petition for Alien Workers) is pending with USCIS. USCIS will assess the petitioner’s ability to pay based only on facts existing from the priority date until the filing of the Form I-140 immigration petition.

Within the context of adjustment of status filings, this guidance addresses scenarios where sponsored employees are changing employers. The U.S. petitioner/employer filing the I-140 employment-based immigrant petition must show that the position offered to the sponsored immigrant is a bona fide job offer. One of the factors of determining whether the job offer is bona fide is to show that the U.S. petitioner/employer is able to pay the required wage.

USCIS' latest policy guidance addresses the "ability to pay" requirement in specific employment-based visa classifications, focusing on scenarios involving job changes by the adjustment of status applicant. This will help both the applicant and the new employer be prepared for what USCIS expects the employer to have in terms of documentary proofs and upon USCIS’ request, whenever necessary. Due to the ever-changing developments in immigration law and guidelines, we also encourage readers to check our website regularly for any news and updates on this and other topics regarding immigration law.