Asian Journal- The Filipino-American Community Newspaper

Answer:    Ability to pay means a petitioning employer must have the capacity to pay the salary of the alien he or she is petitioning from the time the PERM or Labor Certification Application is filed to the time the alien apply for a green card.

Question:    What is the procedure issued by the USCIS memo in determining ability to pay?

Answer:    The USCIS issued an interoffice memorandum requiring the submission of income tax return at the time of filing of Form I-140 (employment based immigrant petition). The income tax return should cover the time the Labor Certification Application is filed.

The USCIS adjudicators may issue an RFE (Request for Evidence) if the initial evidence submitted by the petitioner does not include any of the following:

1. Annual reports

2. Federal income tax returns or audited financial statements If any one of the above is submitted and it does not positively show the petitioner’s ability to pay, then the USCIS adjudicator may deny the petition and an RFE is not required.

Question:    What are the three general basis used by USCIS in determining ability to pay?

Answer:    The USCIS adjudicators will make a positive ability to pay determination in any one of the following circumstances:

1. Net Income

The income tax return submitted must reflect that the petitioner’s net income is equal to or greater than the proffered wage for the alien. Example: If the alien prevailing wage is $18,000 a year, then the net income of the corporation should not be lower than $18,000. If the petitioner is an individual, his or her adjusted gross income must be at least double the alien’s annual salary to provide for the individuals own personal expenses.