我 们都知道办绿卡时，我 们必须证 明公 司有能 力支 付薪 水。事实上法 律上是说
这 个“有能 力支 付薪 水” 必 须一 直要维 持到绿卡批 准。也就是说即便I-140批
了，在I-485批准之前CIS还 是可 以要求公司或新的公 司(AC-21转公司) 出 示财力的
证明。
对于出示的财力证明CIS往 往有非 常两 极的决定，有些移民官接 受一 些辅 助性的
财力证明，有 些移民官就完 全不接 受。而 且连AAO的案例里这类的情 形也很多见，
所以公司的财力证 明若 是有问 题，若要通 过I-140也要凭点运 气。
The main issue in the instant case is “Whether or not the petitioner has
the ability to pay the proffered wage as of the priority date and continuing
until the beneficiary obtains lawful permanent residence”.
The regulation 8 C.F.R 204.5 (g) (2) states:
Ability of prospective employer to pay wage. Any petition filed by or for an
employment-based immigrant who requires an offer of employment must be
accompanied by evidence that the prospective United States employer has the
ability to pay the proffered wage. The petitioner must demonstrate this
ability at the time the priority date is established and continuing until
the beneficiary obtains permanent residence. Evidence of this ability shall
be in the form of copied of annual reports, federal tax returns, or audited
financial statements. The petitioner can also submit additional evidence
such as copies of bank account statements, or other documentation showing
the petitioner’s financial health.
As a general rule, there are three basic approaches that can be used to
establish a petitioner’s ability to pay in the year of filing and these are
the three most common ways of satisfying 8 C.F.R. Section 204.5 (g) (2).
(1) The petitioner’s net income in the year of filing was equal to or
greater than the proffered wage;
(2) The petitioner’s net current assets in the year of filing were equal
to or greater than the proffered wage; or
(3) The petitioner paid the beneficiary a salary equal to or greater than
the proffered wage in that year.
For instance: The petitioner must demonstrate the continuing ability to pay
the proffered wage beginning on the priority date, which is the date the
Form ETA 750, Application for Alien Employment Certification, was accepted
for processing by any office within the employment system of the DOL. The
petitioner must also demonstrate that, on the priority date, the beneficiary
has the qualifications stated on its Form ETA 750, Application for Alien
Employment Certification, as certified by the DOL and submitted with the
instant petition. (Matter of Wing’s Tea House, 16 I&A Dec. 158 (Act.Reg.
Comm.1977).
In the instant case, the Administrative Appeals Office (AAO) affirmed the
denial of an I-140, Immigrant Petition for foreign national worker based
upon the employer’s failure to demonstrate its ability to pay the proffered
wage. The petitioner is a convenience store, which sought to employ the
beneficiary as a manager. The Director of the U.S. Citizenship and
Immigration Services (USCIS) at the Texas Service Center (TSC) found the
petitioner did not demonstrate the ability to pay the proffered wage from
the priority date onwards. It is necessary to demonstrate that the job offer
described in the labor certification is a realistic job offer at the time
it was made, continuing thereafter, until the employee obtains permanent
residence in the United States. If the employer is incapable to pay the
proffered wage, then the job offer does not meet the "realistic" requirement
. The ETA 750 was accepted on March 28, 2001, and the proffered wage was $18
.00 per hour ($37,440.00 per year), thus establishing the priority date. The
I-140 petition was reviewed and initially denied in 2006. In order to
obtain the I-140 petition approval, the employer needed to demonstrate that
the company had the ability to pay the proffered wage from the priority date
in 2001 and through 2005, as that was the last tax year prior to the review
of the I-140 in 2006. Further on appeal, the petitioner submitted a large
number of corporate tax and other financial documents. The evidence showed
the petitioner to be an S corporation established in 1999. In determining
the petitioner’s ability to pay the proffered wage during a given period,
CIS will first examine whether the petitioner employed and paid the
beneficiary during that period. If the petitioner establishes by documentary
evidence that it employed the beneficiary at a salary equal to or greater
than the proffered wage the evidence will be considered prima facie proof of
the petitioner’s ability to pay the proffered wage. In the instant case,
the petitioner has not established that it employed and paid the beneficiary
the full proffered wage from 2001 until 2005.
When the petitioning employer fails to pay the foreign national beneficiary
the proffered wage during any year under consideration, the USCIS will then
review the company's federal tax returns, annual reports or audited
financial statements for proof of ability to pay the proffered wage.
Consequently, showing that the petitioner’s gross receipts exceeded the
proffered wage is insufficient and similarly showing that the petitioner
paid wages in excess of the proffered wage is insufficient.
For example in the case of K.C.P.Food Co., Inc. v. Sava, 623 F. Supp. At
1084, the court held that the Immigration and Naturalization Service, now
CIS, had properly relied on the petitioner’s net income figure, as stated
on the petitioner’s corporate income tax returns, rather than the
petitioner’s gross income. The court specifically rejected the argument
that the Service should have considered income before expenses were paid
rather than net income.
In the aforementioned case, the record before the director closed on July 24
, 2006 with the receipt by the director of the petitioner’s submissions in
response to the director’s request for evidence. As of that date, the
petitioner’s 2006 federal income tax return was not yet due. As a result,
the petitioner’s income tax return for 2005 is the most recent return
available. The petitioner’s tax returns demonstrate its net income from
2001 until 2005 as shown in the table below:
* In 2001, the Form 1120S stated net income of $10,962.
* In 2002, the Form 1120S stated net income of $12,586.
* In 2003, the Form 1120S stated net income of $13,986.
* In 2004, the Form 1120S stated net income of $16,434.
* In 2005, the Form 1120S stated net income of $13,913.
Therefore, for the years from 2001 until 2005, the petitioner’s net income
was never equivalent or exceeded the proffered wage of $37,440. Thus, the
net income was not sufficient to demonstrate the ability to pay the
proffered wage.
As an alternate means of determining ability to pay, the USCIS may review a
petitioner’s net current assets. Net current assets are the difference
between current assets and current liabilities. The petitioner’s tax
returns demonstrate its end-of-year net current assets from 2001 until 2005,
as shown in the table below:
* In 2001, the Form 1120S stated net current assets of $26,830.
* In 2002, the Form 1120S stated net current assets of $39,416.
* In 2003, the Form 1120S stated net current assets of $41,402.
* In 2004, the Form 1120S stated net current assets of $37,314.
* In 2005, the Form 1120S stated net current assets of $35,600.
The AAO found that the petitioner did not have sufficient net current assets
for three of the tax years of issue. Accordingly, the petitioner could not
demonstrate ability to pay based upon net current assets.
As an alternative, but unsuccessful argument, the Counsel for employer/
petitioner argued the petitioner's ability to pay during the years at issue,
based upon combining the petitioner’s net income with its net current
assets. The AAO rejected this argument, finding that net income and net
current assets are not cumulative. The AAO views net income and net current
assets as two different ways of methods of demonstrating the petitioner’s
ability to pay the wage – one retrospective and the other prospective. It
stated that net income is 'retrospective' and net current assets are '
prospective' views of a petitioner's ability to pay the proffered wage. Net
income is retrospective, as it is the sum of the income that is left after
paying expenses. Net current assets are prospective, as it is a picture of
the net total of the assets that will become cash in the near future, minus
the expenses that will come due in the same time period. Thus, the AAO does
not view the combination of these two figures as a meaningful way to
demonstrate the employer’s ability to pay the proffered wage.
In conclusion, this AAO decision highlights that the employer must be able
to demonstrate its ability to pay the proffered wage to the I-140
beneficiary from the priority date until the I-140 petition is approved and
even beyond – until the person obtains permanent resident status. If this
burden is not met, the immigrant visa petition will be denied. Accordingly,
the petitioner had not met its burden, and the appeal was dismissed.
It is one important factor to remember that, when approaching ability to pay
issues, USCIS adjudicators need the facts explained to them in clear,
concise terms. The board of adjudicators seems more inclined to find that a
business has proven its ability to pay the proffered annual wage if they are
provided with an expert opinion. The Service centers are becoming stringent
in adjudicating employment-based petitions, and it is likely that a small
business will either receive an RFE or a denial if ability to pay is not
immediately ascertainable. The likelihood of an approval is greater if the
petitioner can establish its ability to pay the proffered wage through
evidence of the totality of its financial circumstances, including its
annual net current assets, its substantial capitalization, ample wages paid
to its employees, and payment of actual wages to the beneficiary in excess
of the proffered wage.
本文由范毅禹律师事务所提供
本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，
劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处
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