USCIS Issues Policy Guidance on “Ability to Pay” Requirement for Adjustment of Status Applicants Changing Employers

U.S. Citizenship and Immigration Services (USCIS) has recently released updated policy guidance regarding the assessment of an employer’s ability to pay the proffered wage for immigrant petitions in specific employment-based visa categories. This guidance encompasses situations where the sponsored worker decides to change employers.

In cases where employers seek to classify employees under the first, second, and third preference employment-based immigrant visa classifications, demonstrating the ongoing ability to pay the proffered wage to the beneficiary is essential. This demonstration must persist from the priority date of the immigrant petition until the beneficiary attains lawful permanent residence.

The latest guidance clarifies USCIS’s approach when a beneficiary, under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), moves to a new employer while the Form I-140, Immigrant Petition for Alien Workers, is pending. USCIS assesses the petitioner’s ability to meet the payment requirements by scrutinizing the facts existing from the priority date until the filing of the Form I-140. Additionally, USCIS has incorporated minor technical revisions to enhance clarity, readability, and streamline existing guidance.

Published in Volume 6, Part E, Chapter 4 of the Policy Manual, this guidance takes immediate effect and applies prospectively to petitions filed on or after the publication date. It builds upon previous guidance from March 15, 2023, and is part of the ongoing efforts to support adjustment of status applicants.

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