May petitioners submit alternative evidence to establish the employer's ability to pay?

The short answer. Yes. A petitioner may submit financial material beyond the annual report, federal tax return, or audited financial statements that the regulation requires, and USCIS may also ask for such material. What additional evidence cannot do is take the place of the required initial evidence, and it earns weight rather than creating an entitlement to approval. 8 C.F.R. § 204.5(g)(2).

Where the rules come from. The requirement itself is regulatory, 8 C.F.R. § 204.5(g)(2), and the regulation expressly contemplates additional evidence such as profit and loss statements, bank account records, or personnel records, whether offered by the petitioner or requested by the agency. How adjudicators treat that material is addressed in the guidance they follow, consolidated in the USCIS Policy Manual, Volume 6, Part E, Chapter 4, and the procedural rules on requests for evidence and denials are in 8 C.F.R. § 103.2(b)(8). Earlier agency field memoranda on this subject, and the agency naming they used, no longer describe current practice and should be read against that chapter.

The initial evidence cannot be displaced. A financial statement offered in place of the annual report, federal tax return, or audited financial statements does not satisfy the regulation. The one substitution the regulation allows is a statement from a financial officer, and it is available only where the prospective employer has one hundred or more workers, where acceptance is permitted rather than required. Additional material therefore supplements the required record; it does not replace it.

How additional material is assessed. USCIS considers all evidence relevant to the employer’s financial strength and the significance of its business activity, whether or not that evidence is named in the regulation. Additional evidence must be credible and relevant, and it must establish ability to pay when read together with the required initial evidence rather than in isolation.

Bank statements have a particular weakness. A bank statement shows a balance on a given date and does not reveal whether the funds are already committed to other obligations. Balances also tend to duplicate amounts already counted elsewhere, such as taxable income on the tax return or cash used in calculating net current assets. A petitioner relying on monthly statements from the priority date onward must show that the sums have not already been counted and that they represent cash sufficient to pay the wage under the totality of the circumstances.

Personnel records. Personnel records are not required initial evidence, but they may be accepted as corroboration of dates of employment, salary, the number of employees, and overall payroll. Employment contracts, salary and payroll documents, and attendance records are typical examples. Wages paid to other employees are not treated as available to pay the proffered wage unless the beneficiary is replacing a former employee.

The finances of others are usually irrelevant. A legal entity is treated as separate from those who own or run it, so the resources of persons and entities with no explicit legal obligation to pay the proffered wage are generally left out of the analysis. That includes a parent company, the shareholders and officers of a corporation, the members or managers of a limited liability company, and limited partners. The picture differs where the petitioner is a natural person, such as a sole proprietor or a general partner, because personal assets and liabilities may then bear directly on the ability to pay, and personal bank statements may become probative.

The totality of the circumstances. A shortfall on the usual measures is not automatically fatal, because a business may run at a loss for a period in order to improve its position later, in which case the record should explain the sources of funding and the expected profit. Among the factors that may be weighed are gross sales and revenues; total wages paid to current employees in recent fiscal years; media accounts of the business; the number of years in business; historical growth; recent disruptions such as a reorganization, merger, or bankruptcy; the number of employees; uncharacteristic expenditures or losses from which the business has since recovered, such as fire or flood damage; and the employer’s reputation within its industry. In a case such as a single unprofitable year against a history of profitability, factors of this kind may establish ability to pay despite the shortfall.

There is no right to a request for evidence. Where the required initial evidence is in the record but does not establish ability to pay, the agency may deny the petition, may request further information, or may issue a notice of intent to deny; the choice among those courses rests with the agency. 8 C.F.R. § 103.2(b)(8)(iii). Where required initial evidence is missing altogether, the petition may be denied for that reason or the missing evidence may be requested. 8 C.F.R. § 103.2(b)(8)(ii). A petitioner should therefore treat the first filing as the opportunity to establish ability to pay rather than assuming a second chance.

If the petition is denied. An appeal, or a motion to reopen or to reconsider, may be available. 8 C.F.R. §§ 103.3, 103.5.

Related pages. For the requirement and the period it covers, see the employer’s ability to pay in green card cases. For the evidence required at the outset, see the primary evidence of the employer’s ability to pay, and for the measures the agency applies, see the three measures used to assess ability to pay. Inquiries may be directed through the contact page.