Employment-Based Immigrant Visa

USCIS Provides Policy Guidance on “Ability to Pay” Requirement for Adjustment of Status Applicants Changing Employers

USCIS Releases Policy Guidance on Assessing Employers’ ‘Ability to Pay’ in Certain Employment-Based Immigrant Visa Categories, Including Changes of Employers  The U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance outlining the evaluation of an employer’s capacity to pay the offered wage for immigrant petitions within specific employment-based immigrant visa classifications. This guidance encompasses scenarios where sponsored workers are changing employers in the first, second, and third preference categories.

In cases where employers seek to classify potential or existing employees under employment-based immigrant visa classifications requiring a job offer, they are generally required to demonstrate continuous ability to pay the proffered wage until the beneficiary obtains permanent residence.

The updated guidance clarifies USCIS procedures when the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, relocates to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while the Form I-140 is pending. USCIS assesses the petitioner’s ability to pay based on facts existing from the priority date until the filing of Form I-140. The guidance also includes minor technical revisions to enhance clarity and readability, streamlining existing guidance.

Contained in Volume 6, Part E, Chapter 4 of the Policy Manual, this guidance takes immediate effect upon publication and applies prospectively to petitions filed on or after that date. It extends and builds upon prior guidance issued on March 15, 2023, addressing how USCIS evaluates employers’ ability to pay the proffered wage. This release is part of the ongoing efforts to support the adjustment of status applicants.

Source: USCIS