USCIS Issues New Policy Guidance on the “Ability to Pay” Requirement

United States Citizenship and Immigration Service (USCIS) issued an updated policy guidance on January 5, 2024, regarding how USCIS analyzes an employer’s ability to pay the proffered wages to sponsored workers, when filing immigrant petitions (Form I-140) in the first, second, or third preference employment-based categories, including cases when sponsored workers change employers.
Generally, petitioning employers seeking to classify sponsored workers under the first, second, or third preference employment-based immigrant visa petitions that require a job offer must demonstrate their continuing ability to pay the proffered wage to the sponsored worker from the priority date of the immigrant petition until the sponsored worker obtains lawful permanent residence.
Notable Policy Update
If a petitioning employer files Form I-140 and the sponsored worker files for adjustment of status simultaneously, the sponsored worker may move to a new employer after the adjustment of status application has been pending for over 180 days. This updated guidance clarifies that in cases when a sponsored worker moves (or ‘ports’) to a new employer while the petitioning employer’s Form I-140 is still pending, USCIS will only review the facts and evidence that impact the petitioning employer’s ability to pay starting from the priority date up until the date of filing Form I-140. This means that any change in financial circumstances or any financial downturn experienced by the petitioning employer after the filing of Form I-140 should not negatively impact its adjudication.
If the petitioning employer experiences any dramatic financial downturn after a sponsored worker has moved to a new employer and Form I-140 remains pending, the sponsored worker may consider upgrading the pending Form I-140 by requesting premium processing service for its adjudication.
For any questions or assistance regarding this updated policy guidance, please contact the trusted immigration team at Chugh, LLP.

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