4. EMPLOYER'S ABILITY TO PAY LESS THAN REQUIRED

Employment Based cases (EB category) require an offer of employment from an American business. The wage or salary which the business must offer to pay the immigrant worker is determined by the U.S. Department of Labor ("Prevailing Wage"). As there is a long waiting time between the day the procedure begins (the "Priority Date") and the day the immigrant worker is able to legally start working for the sponsoring business, the sponsor is not required to pay the alien the Prevailing Wage (or any wage, at all) during the long waiting time. Very convenient, but........

But the U.S. Citizenship and Immigration Services (CIS) requires the sponsoring business to demonstrate, to show proof that it had the financial ability to pay the full Prevailing Wage - on the day on which the application was filed with the U.S. Department of Labor and from then on, for every year of the long waiting period. In other words: the sponsoring business is not required to pay the Prevailing Wage (or any wage) during the waiting time, but must show ability to pay it. This is not always convenient.

How to prove this ongoing financial ability? The basic answer is: Thru the Income Tax Returns of the sponsoring business.

A business Income Tax Return is a complex Form, with a bewildering amount of numbers. The Immigration Law and Immigration Regulations do not provide rules how to use these numbers to establish the employer's ability to pay for immigration purposes.

As a result, CIS created sets of complicated rules how to compute the employer's ability to pay:

  • One set of rules applies when the sponsoring business is a sole proprietorship and another when it is a separate business entity such as a corportation;
  • One set of rules is for corporations and another for partnerships and other entities similar to partnerships;
  • One set of rules is for cases where the immigrant worker is actually employed by the sponsoring business and another when the offer of employment is purely for the future;
  • One set of rules is for businesses showing a taxable income and another for businesses that do not.

You and your immigration lawyer should review the sponsoring business' financial situation - and Income Tax Returns - before the first application is even filed, to avoid nasty surprises later.  If the surprise hits you anyway, the experienced immigration lawyer should look for the possibility of saving the existing application and its Priority Date by using one of the alternative rules which might be available.

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