3/7/2006

The issue of ability to pay has lately presented a lot of problems not only in the I-140 immigrant petition proceedings, but also in the H-1B nonimmigrant proceedings, because of the confusion and misunderstanding of some adjudicators in determination of the threshold requirement for "employer" qualification for H-1B petition.

Specifically there are numerous reports that some adjudicators have issued RFE demanding to submit the evidence of "financial ability to pay" including the tax returns, etc. Obviously, this can be a training issue in that unlike I-140 petition proceeding, the financial ability to pay of the employer is not a threshold requirement under the regulation. 

The real threshold is existence of a bona fides job of specialty occupation. Accordingly, even a start-up company without any capital or financial record should be eligible inasmuch as there exists a bona fides job for the alien as established by such evidence as contracts or job orders from the customers or clients for the project involving the alien's services which will also guarantee the income for payment of the proffered salary to the H-1B alien. 

It is thus immaterial whether the employer had a track record of business income or capital in the past. Again, it appears to be a training issue and not a Services-wide issue, but it would help if the USCIS would issue a guidance for the Service Centers and their adjudicators.