3/14/2006

Some I-140 immigrant petitions have been denied on the issue of petitioning employer's financial ability to pay the proffered wage. The requirement of "financial ability to pay" is derived from the interpretation of the immigration statute and there is no such specific language in the statute itself.

In implementing the financial ability to pay requirement, there have been a number of confusions until the so-caled "Yates Memo" was released no too long ago to clarify the standards. Now, the USCIS rule-making agenda reflects that USCIS is planning to amend 8 CFR 204.5(g)(2) to eliminate specific reference to ability to pay and replacing it with the statutory requirement that petitioner establish its bona fides as a U.S. employer through specifically cited initial evidence. 

This rule provides clarification and focus that reflects the statutory requirement that the petitioning employer establish its bona fides as a U.S. employer and the viability of the proffered job.  

Before the legacy INS and the current USCIS started toughening the financial ability to pay requirement, the legacy INS implemented the statute and regulation somewhat liberally and close to the terms of the statutory language. For instance, the reality of the business reflects that the businesses constantly go through "ups and downs" in revenue and income over the years. One cannot judge the viability of a business strictly based on the net income figures of the businesses in a given year.