E-2 Visa Attorney – H-1B Visa Attorney.

Employers sponsoring foreign workers for green card employment must show that they have the ability to pay the new worker’s wages. When hiring through the EB-2 or EB-3 visa categories, employers must present all proposed job duties and minimum requirements for the position, and the Department of Labor will return a prevailing wage request with a minimum salary. If the employer moves forward with a labor certification, it must show that it is able to pay that salary when the new employee gets his or her green card, or the proffered wage, whichever is higher.

Recently, The Department of Labor has been creating minimum prevailing wage numbers that are significantly higher than they are for the same exact positions under H-1B and other employment non-immigration visa categories.

The reason these salaries are so much higher than they are for the temporary employment visas would seem to be because the Department of Labor is trying to discourage US employers from hiring foreign nationals by making them pay more for these green card sponsorships.

There has been a huge push back from Washington to be more protectionist and to dissuade employers from hiring foreign nationals for positions that some argue could be filled by Americans—which is usually not really the case. Consider this: if an employer is told he will have to pay 30% or 40% more than he is paying current employees to sponsor someone from overseas, or to sponsor someone for a green card that is already working for it but who’s visa will eventually expire, the employer is much less likely to go through with the process.

If the employer decides to go forward to accept the prevailing wage assigned and submits a labor certification, he must sponsor the candidate he wants for a green card. When he submits a green card petition, he must show the ability to pay. And that is shown in one of two ways: current net assets or net income. To show net income, he provides recent federal tax returns and if the net income in these returns is above the prevailing wage, then the employer passes the test for ability to pay.

In most cases, however, because companies want to minimize their level of taxation, the net income is not above the salary. In that case, an employer must show ability to pay through net current assets, which is shown through an audited financial statement, prepared by an accounting firm. This statement must show that current net assets are above the greater of the prevailing  or proffered wage for the position.

The regulations say that an employer must show the ability to pay from the priority date, which is the date that the firm or labor certification is filed, up to the time that the worker receives his or her green card, which essentially means up to the time that the green card petition was submitted. In order to show this in a convincing fashion, it is important to have audited financials. Even though these audits can be costly for a company, they can make the difference between having the petition approved or not.

The one exception to this rule is if an employer is already employing the individual under H-1B or E-3, or another temporary employment visa. If the salary that is being paid while the individual is being sponsored for a green card is above the prevailing wage, then all that is needed to be shown are pay stubs and tax returns proving that the worker is currently being paid this wage.

So keep in mind that when USCIS adjudicates an employment-based green card petition, it decides whether the petition qualifies under the specific visa category and whether the individual qualifies for the position based on the requirements stipulated in the labor certification. If an employer proves both of those items, but is unable to prove the ability to pay, the petition will still be denied.

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