What does ability pay mean in I-140 RFE?

By N.M. Gehi, Esq.

In employment-based immigration, "ability to pay" is an important part. The United States Citizenship and Immigration Services (USCIS) checks this when they review I-140 petitions. The I-140 petition is a big step towards getting an employment-based green card or visa.

This requirement ensures the employer can support the foreign national and their family. It's about the employer's financial strength during and after the immigration process.

Showing you can pay is a must for the I-140 petition. It shows USCIS that the employer can handle their financial duties to the foreign national. Not showing this can lead to a Request for Evidence (RFE) from USCIS.

This RFE can slow down the immigration process. It might even cause the petition to be denied.

Components of I-140 Immigration Forms

The I-140 form has essential parts. It includes info on the employer, the job, and the worker's skills. Employers must show that the workers can do the job with their education, experience, and labor certification.

The main goal of the I-140 petition is to show the worker has the right skills for the job. This is a big step in getting a green card for work. It shows the worker is qualified and the employer wants to sponsor them.

USCIS Requirements for I-140 Filing

●      Submission of a completed I-140 form with all required supporting documentation

●      Proof of the employer's ability to pay the offered wage, typically through the submission of financial statements or tax returns

●      Evidence of the foreign worker's educational and/or professional qualifications, such as diplomas, transcripts, or work experience

●      Labor certification or PERM (Program Electronic Review Management) approval from the Department of Labor, if required

●      Adherence to specific filing deadlines and priority date requirements.

Common Triggers for I-140 RFE Regarding Ability to Pay

When filing an I-140 petition, employers must show they can pay the offered wage. The U.S. Citizenship and Immigration Services (USCIS) might ask for more evidence if they doubt this. Knowing what can lead to these requests helps employers prepare better and avoid delays.

One big reason for an I-140 RFE is missing or inadequate financial documents. USCIS might ask for tax returns, financial statements, or bank records to check the employer's money situation. Giving all needed financial documents early can prevent these RFEs.

Salary info that doesn't match can also cause an RFE. USCIS checks the offered wage against the employer's past pay records and W-2 forms. Clearing up any salary mismatches or explaining them can help.

Big changes in the company's structure, like mergers or restructuring, can make USCIS question the employer's ability to pay. They might ask for more info to understand the company's financial health and how these changes affect it.

By tackling these common RFE triggers early, employers can make the immigration process smoother. This increases the chances of a successful petition for their immigrant employees.

Required Documentation to Prove Ability to Pay

When you get an I-140 Request for Evidence (RFE) about your ability to pay, it's important to show your company's financial strength. You need to include several key documents:

●      Tax returns - Your company's tax returns for the last 3-5 years show your financial health and success.

●      Financial statements - Audited or CPA-prepared financial statements give a detailed look at your company's finances.

●      Payroll records - Payroll records like W-2 forms and paystubs prove you can pay the offered salary.

●      Bank statements - Bank statements for your company's accounts show your liquid assets and ongoing cash flow.

What is the I-140 RFE Response Timeline

You need to act fast when you get an I-140 Request for Evidence (RFE). The clock starts as soon as you get it. Quick action is critical to avoid delays.

USCIS usually has 60 days to respond to an I-140 RFE. This time, let them check the extra info you send. But, this time can change. It depends on how complex your case is and the USCIS office's workload.

If you need more time, you can ask for an extension. USCIS often agrees with this. But you must ask before the 60-day mark is up. If you miss this deadline or don't ask for an extension, your I-140 petition might be denied.

Financial Methods to Demonstrate Ability to Pay

When facing an I-140 Request for Evidence (RFE) about paying power, several financial methods can help. By showing the company's net income, net current assets, and actual wage payments, employers can prove they can support the immigrant's salary.

One important metric is the company's net income. It shows how profitable the company is. By showing steady positive net income, the employer can prove they are financially stable and can pay the worker's salary.

The net current assets also play a significant role. They show the company's short-term financial health. A solid net current assets level means the employer can quickly pay the worker's salary.

Employers can also show evidence of actual wage payments to the worker or others. This shows they have a history of paying on time. This evidence adds to the net income and net current assets figures.

Employers can make a strong case by using a mix of these financial ratios and metrics. This can help them meet the USCIS' ability to pay requirements and get through the I-140 RFE process.

Mistakes in Responding to I-140 RFE

It's a big deal when you get an I-140 Request for Evidence (RFE) about your ability to pay. But there are mistakes you should avoid. We'll discuss the most common errors and how to clearly show your financial info to USCIS.

One big mistake is sending in incomplete or mixed-up financial papers. Ensure you provide all the needed documents, like tax returns and bank statements. These should show your company's financial situation clearly. If there are gaps or mistakes, it could cause more trouble.

Alternative Evidence for Ability to Pay

When tax returns or audited financial statements aren't enough, there are other ways to show a company can pay the required wage. These include non-traditional financial documents, expert opinions, and industry-specific signs. They can help make an I-140 petition stronger and answer a Request for Evidence (RFE) about paying wages.

One good strategy is to get expert opinions from people in the field. These experts can discuss the company's financial health and ability to meet wage demands. Based on their experience and knowledge, their views are very important to USCIS.

Impact of Company Size on Ability to Pay Requirements

The ability to pay for I-140 petitions greatly changes based on the company's size and money situation. Small businesses and startups find it hard to show they can pay, while big companies have it more manageable.

Startups and small businesses struggle to prove they can pay. They often have little financial history, changing money, and less money for immigration. USCIS looks closely at their startup finances and financial stability.

They might need to show more, like financial plans, investor money, or a strong company valuation.

Established businesses with good money and history find it easier. USCIS looks at its overall financial health, including profits, cash flow, and assets. Big companies usually have teams and money to help with immigration.

Role of Tax Returns in Proving Ability to Pay

Tax returns are essential when dealing with an I-140 RFE about an employer's ability to pay. The US Citizenship and Immigration Services (USCIS) looks closely at these returns to check the employer's financial health. They also examine IRS transcripts for more detailed tax information.

USCIS doesn't just look at the numbers. They do a deep dive into the tax returns. They check the employer's total income, net profit, and other financial details. This helps them see if the employer can meet the wage promises made in the I-140 petition. Showing detailed and organized tax documents can help the employer's case.

Legal Disclaimer:

The information provided in this article is for general informational purposes only and does not constitute legal advice. While efforts have been made to ensure the accuracy of the information, immigration laws and policies, including those governing the I-140 and RFE, are subject to change. Readers are advised to consult with a qualified immigration attorney or legal professional for advice specific to their individual circumstances. Gehi & Associates does not assume responsibility for any actions taken based on the information provided in this article. The receipt or use of this information does not create an attorney-client relationship.