Primary Evidence of the Employer's Ability to Pay

The short answer. The regulation names three documentary forms as the evidence that must accompany a petition resting on an offer of employment: copies of annual reports, federal tax returns, or audited financial statements. An employer that employs 100 or more workers may instead submit a statement from a financial officer of the organization, which the adjudicator may accept. 8 C.F.R. § 204.5(g)(2).

The requirement does not depend on the size of the employer. The three documentary forms are required of every petitioner whose petition rests on an offer of employment, and the regulation draws no distinction between smaller and larger organizations in imposing them. The hundred-worker provision does not confine the requirement to small employers; it supplies an alternative that only larger employers may use.

The evidence covers a period, not a moment. Guidance directs that the petition include one of the three forms for each available year from the priority date, so what is required is a series of documents rather than a single filing. Where none of the three is available for the priority date year at the time of filing, a document for the preceding year may be considered as part of the overall assessment. USCIS Policy Manual, Volume 6, Part E, Chapter 4.

Annual reports. For a publicly traded company of a certain size, either the annual report filed with the Securities and Exchange Commission on Form 10-K or the annual report issued to shareholders qualifies, and both contain audited financial data. Annual reports of private companies are also accepted, and they are most persuasive where they contain audited financial data.

Federal tax returns. A submitted return should be complete, including all required schedules. Where what has been filed does not establish the ability to pay, the agency may ask for schedules, statements, attachments and other supporting documentation, and in some circumstances for certified copies or transcripts issued by the Internal Revenue Service, as where returns have been amended during the adjudication or the figures they report are in question.

Audited financial statements. Where financial statements are relied on as initial evidence they must be audited, which means examined under an acceptable standard by an accountant authorized in the jurisdiction to perform the audit, and they must be accompanied by an auditor’s report stating that the statements have been audited. Compiled and reviewed statements are a different and less rigorous exercise, and they may be used only alongside the other required forms of initial evidence rather than in their place.

The auditor’s opinion affects weight, not eligibility. An auditor’s report carries one of four opinions, and an unqualified opinion is ordinarily the most credible and probative. A qualified opinion may still support the showing, particularly where the qualification does not touch the figures that matter to the analysis, while statements accompanied by an adverse opinion or a disclaimer of opinion are read against the rest of the record rather than taken at face value.

The financial officer statement. An employer that employs 100 or more workers may submit a statement from a financial officer in place of the three documentary forms. The regulation makes acceptance a matter for the adjudicator rather than an entitlement of the employer, and a detailed letter explaining the basis of the officer’s conclusion in terms of the organization’s finances is the most probative form it can take. Guidance identifies circumstances in which such a statement standing alone will not carry the point, among them a letter dated years before the filing and reused from earlier petitions, a record suggesting that the organization employs fewer workers than the provision requires, inconsistency with other evidence such as substantial losses or bankruptcy proceedings, petitions pending on behalf of several beneficiaries, and a signatory who is not shown to be a financial officer of the petitioner.

Filing the required evidence is not the same as proving the ability. Producing the documents satisfies the initial evidence rule, but the mere submission of an annual report, a federal tax return or an audited financial statement does not establish the ability to pay. The financial information the documents contain must be analyzed, and where required initial evidence is not submitted or does not demonstrate eligibility the agency may deny the petition or request what is missing. 8 C.F.R. § 103.2(b)(1), (b)(8)(ii).

Paying the wage does not excuse the documents. Records showing that the beneficiary has in fact been paid at or above the offered wage go a long way toward the substantive showing, but the petition must still contain one of the three documentary forms for each year from the priority date, or a financial officer statement where the employer qualifies to submit one.

Organizations that file no tax return. A nonprofit organization exempt from income taxation is generally still required to file an annual return of its income and expenses, and certain religious organizations are excused even from that. An organization without tax returns must supply annual reports or audited financial statements instead, or a financial officer statement where it employs the number of workers the provision requires.

Related pages. For the requirement itself and the period it covers, see the employer’s ability to pay in green card cases. For the measures applied to these documents once they are in the record, see the three measures used to assess ability to pay. For material offered beyond the required initial evidence, see alternative evidence of the employer’s ability to pay. Inquiries may be directed through the contact page.