{ Banner }

Immigration Blog

Immigration Blog

The Immigration attorneys at Chamberlain Hrdlicka have considerable experience handling the entire spectrum of immigration matters for individuals, families and businesses both in the U.S. and abroad. We have represented clients in all parts of the United States and in more than 100 countries.

We have represented companies and non-profit organizations both in the U.S. and abroad in obtaining U.S. immigrant and non-immigrant visas through the employment, business and investment categories, as well as in U.S. citizenship matters. Additional expertise includes employment cases, labor certifications and consular work.

For individuals, we have handled a wide range of immigration matters including visa processing, naturalizations and defense of removal (deportation) cases. And with support from the Tax Planning group, have assisted in pre-immigration tax planning.

While the constant change in U.S. immigration laws presents challenges for many in this area of work, we are at the forefront of this rapidly changing field of law. As members of the American Immigration Lawyers Association and founding members of IMMLAW, Chamberlain’s immigration team actively participates in the exchange of ideas and information in emerging areas so that our clients can benefit from the most innovative techniques in the ever-changing immigration environment.

Chamberlain Hrdlicka Blawgs

Business and International Tax Blog

Employee Benefits Blog

Immigration Blog

Labor & Employment Blog

Maritime Blog

SALT Blawg

Tax Blawg

Ability to Pay When Filing a Form I-140

In employment-based permanent residence cases, the employer must complete the Form I-140.  One of the essential aspects of the I-140 is the requirement that the sponsoring employer demonstrate an ability to pay the proffered wage. This requirement can be a challenging element in some cases.  However, there are steps that petitioning employers can take to identify and address ability to pay concerns and to increase the chance the U.S. Citizenship and Immigration Services (USCIS) will approve the I-140 petition.

USCIS in making a decision on the I-140 petition requires the employer to establish the financial ability to pay this wage as of the date the PERM labor certification was filed.  USCIS expects the employer to provide financial documents that evidence this ability to pay, generally in the form of annual reports, tax returns or audited financial statements.  In some cases, these documents may not suffice, for example in cases where the annual reports, tax returns or audited financial statements are not available or the assets shown in these documents are not financially adequate. 

Another possible way for an employer to demonstrate its ability to pay is through evidence that the sponsored worker has been employed by the petitioner since the filing of the PERM labor certification, earning a salary that is equal to, or greater than, the offered wage. A submission of W-2s and paystubs indicating that this salary has been paid since the PERM labor certification filing typically is sufficient to establish a company’s ability to pay. If the employer has not paid the offered wage since first filing the case, the employer can demonstrate its ability to pay through documents that prove that the company’s net income or net current assets were equal to, or greater than, the offered wage or show that it can pay the difference between the proffered wage and the wages that were actually paid to the foreign national.  In some cases, the task of showing the ability to pay this difference can be in the form of bank statements.

Ability to pay issues have to be dealt with up front before securing an I-140 approval.  If not properly handled, they can lead to a failed PERM case, which results in the foreign national worker not obtaining permanent residence.  It is important to anticipate complications and make adequate preparations throughout the PERM process.  Please contact us if you have a PERM case in the near future and we will happily navigate you through the process.

  • Kisshia  Simmons
    Senior Associate

    Kisshia Simmons is an Immigration practitioner with over 15 years of experience.

    Prior to joining the firm, Ms. Simmons was a Founder and Partner with Simmons Grant, PLLC, a law firm in New York city. Ms. Simmons has represented small ...