USCIS Issues Policy Guidance on “Ability to Pay” Requirement When Adjustment of Status Applicants Change Employers

U.S. Citizenship and Immigration Services today issued policy guidance on how we analyze an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications, including instances when the sponsored worker is changing employers. Generally, employers seeking to classify prospective or current employees under the first-, second-, and third-preference employment-based immigrant visa classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition until the beneficiary obtains lawful permanent residence. The updated guidance explains that when the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, moves (or “ports”) to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while the Form I-140 is pending, USCIS determines whether the petitioner meets the ability to pay requirements only by reviewing the facts in existence from the priority date until the filing of the Form I-140. USCIS is also making other minor technical revisions to improve clarity and readability, and otherwise streamline existing guidance. This guidance, contained in Volume 6, Part E, Chapter 4 of the Policy Manual, is effective immediately upon publication and applies prospectively to petitions filed on or after that date. It builds on previous guidance from March 15, 2023, on how USCIS analyzes employers’ ability to pay the proffered wage, and is one of many recent actions to support adjustment of status applicants.