Under U.S. immigration law, employers who wish to hire foreign workers on a permanent basis may apply through employment based green card processes such as the PERM labor certification process.  The PERM process and some of other green card categories must demonstrate that they are offering a wage that is at least equal to the prevailing wage for the position in the geographic area where the work will be performed. Overall, this policy regarding payment of the prevailing wage or higher is intended to ensure that foreign workers are not being exploited or underpaid, and that U.S. workers are not being displaced by foreign workers who are willing to work for lower wages.

The U.S. Citizenship and Immigration Services (USCIS) requires employers to demonstrate that they have the ability to pay the proffered wage to the foreign worker. This means that the employer must show that they have the financial resources to pay the wage offered to the foreign worker at the time of filing the petition and throughout the duration of the foreign worker's employment.

The USCIS considers several factors when evaluating an employer's ability to pay, including the employer's financial statements, tax returns, and other financial documents. The USCIS may also consider factors such as the employer's size, industry, and location. An employer may also submit additional evidence such as profit and loss statements, bank account records, or personnel records.  Employers can also satisfy the ability to pay requirements by also submitting payroll records demonstrating that, during the relevant time period, they have been paying the foreign employee the required wage. 

In cases where the employer is a startup or a small business, the USCIS may take into account the potential for future growth and revenue when evaluating the employer's ability to pay. In some cases, the USCIS may also request additional documentation or information to further evaluate the employer's financial situation.

USCIS recently issued a policy guidance regarding this requirement.

Resources: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-4 

This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances.  For a comprehensive evaluation of your immigration situation and options, you are invited to call us at 214-494-8033 or complete our contact form.