Green Card application: Why your employer's financial stability matters, & can you switch jobs while in queue

The United States Citizenship and Immigration Services (USCIS), in its latest policy guidance, has highlighted the role of an employer's financial status in an applicant's Green Card application.
"Employers seeking to classify prospective employees under 1st, 2nd, and 3rd 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 visa petition until the beneficiary obtains lawful permanent residence," the USCIS said.

• Under this regulation, employers are required to furnish annual reports, federal tax returns, or audited financial statements for each available year from the priority date of the Green Card application. In instances where the employer has a workforce of 100 or more individuals, an alternative is offered—the submission of a financial officer statement affirming the petitioner's ability to meet the proffered wage. USCIS allows additional evidence, such as profit and loss statements, bank account records, or personnel records.
  

 USCIS provided an update to this regulation, relevant for cases where the beneficiary moves to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), and the Immigrant Petition for Alien Workers (Form I-140) is still pending. In such scenarios, officers evaluating the ability to pay will solely consider facts in existence from the priority date until the filing of Form I-140.

This revision aims to provide a more focused and precise assessment of an employer's financial capacity during the AC21 porting process.

Spotting realistic job offers in Green Card applications

The ability to pay the proffered wage indicated on Form I-140 is a critical factor in determining the realism of a job offer. For petitions requiring an employment offer, employers must establish their continual ability to pay the required wage from the priority date until the beneficiary achieves permanent resident status.
Initial Required Evidence: To demonstrate the ability to pay, the petitioner must submit copies of annual reports, federal tax returns, or audited financial statements for each available year from the priority date. Exceptions are allowed for U.S. employers with 100 or more workers, who may provide a financial officer statement.
Acceptable Forms of Evidence:

1. Annual Reports: Publicly traded companies must submit reports to the U.S. Securities and Exchange Commission (SEC) on Form 10-K. Private companies' annual reports are acceptable, especially if containing audited financial data.
2. Federal Tax Returns: The petitioner's business structure determines the applicable IRS tax return form. USCIS may request additional schedules or certified copies in certain circumstances.

3.     Audited Financial Statements: Must be examined under an acceptable standard by a certified public accountant, accompanied by an auditor's report. Unqualified opinions are generally considered the most credible.

     Financial Officer Statement: Employers with 100 or more workers may submit a statement from a financial officer, detailing the company's financial position.

Additional Evidence of Ability to Pay: USCIS may consider bank account statements, personnel records, and credit limits as corroborating evidence. The petitioner bears the burden of demonstrating continuing ability to pay, considering all relevant evidence.

Nonprofit Organizations: Nonprofits, though tax-exempt, must submit annual reports, audited financial statements, or financial officer statements to establish ability to pay.