U.S. Citizenship and Immigration Services (USCIS) released updated policy guidance on how they review an employer’s ability to pay the offered wage to prospective employees with employment-based immigrant petitions filed under the first, second, and third preference categories. The updated policy guidance also clarifies how USCIS will review an employer’s ability to pay when a beneficiary whom they have sponsored changes employers under the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21). USCIS released these updates in its continued effort to streamline existing guidance and provide clarity to employers and adjustment of status applicants.

Generally, employers must be able to demonstrate their continuing ability to pay the offered wage to employees with petitions filed under the first, second, and third preference categories starting from the priority date of the underlying I-140 petition, until the beneficiary receives lawful permanent resident status (Green Card). If an I-485 application is based on an I-140 petition, AC-21 allows the I-485 applicant to change jobs or employers by filing a Form I-485 Supplement J without having to file a new Form I-140 petition.

Under the updated guidance, when an employee ports to a new employer under AC-21 while the underlying I-140 petition is still pending, USCIS will determine whether the petitioner meets its ability to pay requirement by only reviewing the facts in existence at the time of filing. In other words, USCIS will only consider initial evidence submitted with the petition (and any responses to Requests for Evidence) to determine if the petitioner has established its ability to pay from the priority date to the date of filing the I-140 petition.

The update in the Policy Manual is effective immediately and applies to petitions filed on or after January 5, 2024. This update builds on the previous guidance, issued on March 15, 2023.

If you have questions about I-140 Petitions, I-485 applications, changing employers under AC-21, or any other U.S. immigration related issues, contact us. We actively monitor ongoing updates to ensure our clients get the right advice for their particular situation.