Updated: Feb 25, 2024
Adjustment of Status (AOS) is the process through which an eligible individual already present in the United States applies to become a lawful permanent resident (green card holder).
The U.S. Citizenship and Immigration Services (USCIS) has issued new policy guidance on assessing an employer's "ability to pay" the proffered wage when AOS applicants change employers. This update has significant implications for employment-based immigration processes.
The policy change has a targeted impact, applying specifically to first, second, and third preference employment-based immigrant visas (EB-1, EB-2, and EB-3,). These categories are designed for individuals with extraordinary abilities (EB-1), those holding advanced degrees or with demonstrated exceptional skills (EB-2), and skilled or professional workers (EB-3).
The focus on these categories signals a recognition of the value of highly qualified professionals to the U.S and aims to facilitate pathways for them within the immigration system.
USCIS conducts a rigorous assessment to determine whether an employer has the financial resources to consistently pay the wage indicated in the original I-140 immigrant visa petition. This begins from the priority date (the petition's filing date) and extends throughout the process.
The assessment involves analyzing the employer's historical financials alongside projected finances to ensure sustainability rather than relying on a single snapshot in time.
Employers must typically present robust evidence to establish their "ability to pay." This comprehensive documentation includes:
Annual reports: These provide a detailed overview of a company's revenue, expenses, and overall profitability, giving insights into financial performance over time. Annual reports offer a multi-year perspective, allowing USCIS to evaluate trends in the company's financial health and capacity to sustain the proffered wage.
Federal tax returns: These detail a company's income and tax liabilities, offering a government-verified perspective on financial standing. Tax returns contain intricate information on revenue, deductions, and taxable income, helping USCIS understand a company's true financial position beyond just top-line revenue figures.
Audited financial statements: These statements provide an independent assessment by a certified accountant, lending additional credibility to a company's financial health. Auditors offer a rigorous examination of financial records, ensuring they comply with accounting standards and accurately reflect the company's status, boosting the trustworthiness of this documentation.
Statement from a financial officer (100+ employees): This offers direct attestation about a company's financial capability from a high-level executive, primarily applicable to larger organizations. A financial officer, such as a CFO, has deep insight into the company's finances and can provide a well-informed affirmation of the company's ability to honor the offered salary commitment to the beneficiary.
The priority date is of paramount importance because it establishes a fixed starting point from which the petitioner's (the original employer's) ongoing financial stability must be demonstrated.
This mechanism aims to prevent employers from potentially misrepresenting their financial health from the point at which the beneficiary employee seeks to utilize portability provisions for an employer change.
USCIS acknowledges the diversity of business structures and understands that not all businesses have access to the same types of financial documentation. They consider other acceptable forms of evidence to demonstrate "ability to pay," including:
Bank letters: These can confirm the availability of sufficient funds to cover payroll obligations. A letter from the bank detailing a healthy account balance, especially in relation to the offered wage, strengthens the case for "ability to pay."
Contracts: Secured contracts demonstrate a source of revenue and offer a measure of financial predictability. Showing signed contracts for services or projects indicates a likelihood of incoming funds in support of salary payments.
Evidence of recent business activities: This shows that the company is actively operating and generating income, which is crucial for wage payment. Examples might include recent invoices, purchase orders, marketing materials, or documentation of new client acquisition, all of which point to ongoing business operations.
This policy offers significant flexibility for skilled workers as they pursue a green card. Under previous rules, a new employer was often required to file a new I-140 petition, potentially resetting the priority date and adding significant time to the process.
This updated policy streamlines the path by focusing USCIS attention on the original petitioning employer's financial status. This opens doors for more seamless job changes, allowing skilled professionals to pursue better opportunities without jeopardizing their place in the green card queue.
Previously, a lack of clear guidelines regarding how USCIS evaluated changes in employment during the AOS process contributed to uncertainty for both employers and workers alike.
The new policy offers greater transparency regarding expectations and how USCIS will assess an employment change. This clarity reduces potential anxieties, delays, and complications during an already lengthy and complex process.
While offering more flexibility, this policy also heightens scrutiny on the petitioning employer's financial records, particularly for the period starting from the priority date. This additional analysis could lead to extended processing times in some cases.
This is especially true if the petitioner's documentation warrants further examination or leads to requests for additional evidence by USCIS. Applicants should factor in the possibility of these delays when considering job changes.
Maintaining well-organized financial documentation isn't just a good practice – it's now essential. Start from the moment you file the initial I-140 immigrant visa petition and continue diligently.
This preparedness ensures you can seamlessly provide proof of "ability to pay" if your sponsored employee seeks Adjustment of Status (AOS) portability. Key documents (annual reports, tax returns, etc.) must be easily accessible and up-to-date.
Don't leave room for interpretations. Become intimately familiar with USCIS's updated "ability to pay" requirements and how they directly relate to the adjustment of status process.
This goes beyond reading the guidance – consider consulting with an immigration attorney to delve into any potential nuances or how policy changes might impact specific business scenarios.
Employers facing complex situations (e.g., recent mergers, corporate restructuring, significant financial shifts) should strongly consider seeking the expertise of an immigration attorney.
Specialized legal counsel can help navigate the intricacies of demonstrating financial capacity during these types of transitions and ensure that AOS processes for sponsored employees are not jeopardized.
Transparent and consistent communication between potential employees and their prospective new employers is crucial. Early in the recruitment process, address the topic of financial documentation and its potential impact on the AOS process.
This allows for clarity and timely action if the new employer needs to gather the necessary financial evidence to support their "ability to pay" demonstration.
Employees have the right to inquire about a new employer's financial health to understand how it could influence their adjustment of status. This involves requesting information beyond just the salary offer.
Consider asking about the company's annual revenue, profit margins, and recent business activities to gain a broader understanding of their financial stability. Assessing this information proactively allows for informed decision-making related to a potential job change.
The new USCIS guidance emphasizes the original petitioner's financial responsibility up to the I-140 filing date, providing more flexibility for AOS applicants pursuing employment changes. This shift offers the potential to ease the process for skilled workers seeking to advance their careers while maintaining their place in the green card process.
Both employers and potential beneficiaries need to grasp the implications of this shift to ensure a smoother and more predictable adjustment of status experience. It remains to be seen how this policy refinement will ultimately impact processing times and overall success rates for employment-based AOS petitions.
Potential benefits include reduced delays in cases where the original petitioner has strong financial records. In contrast, increased scrutiny could add processing time for petitioners with complex financial histories. Tracking the long-term outcomes of this policy update will be important for all stakeholders in the employment-based immigration landscape.
USCIS Policy Manual: For the most detailed guidelines on the ability to pay requirements and other AOS considerations, consult the USCIS Policy Manual:https://www.uscis.gov/policy-manual
American Immigration Lawyers Association (AILA): AILA is a national association of attorneys specializing in immigration law. Their website offers resources, analysis, and updates on policy changes:https://www.aila.org/
USCIS Website: The official USCIS website provides news updates, forms, and general information on the adjustment of status process:https://www.uscis.gov/
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