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USCIS new guidelines on employer’s ability to pay may help startups retain talent

MUMBAI: The policy guidelines recently issued by the US Citizenship and Immigration Services (USCIS) on the employer’s ability to pay the proffered wage (which is the Department of Labour’s assigned wage for a prospective green card job) is a mixed bag. This could help startups retain the right talent by sponsoring individuals for employment-based green cards. In certain cases, it could also result in more evidence being sought and prolong the adjudication process.
The general trend has been that sponsoring companies viewed as having a non-standard financial history, such as new entities, companies with complex organisational structures, those heavily funded with venture capital, or those heavily invested in intangible assets faced higher denial rates on filing Form I-140, which is the green card application for prospective or current employees under the EB-1, EB-2 and EB-3 immigrant visa categories.
According to Ashwin Sharma, immigration attorney, the previous guidance was ambiguous, and limited in the evidence that could be used to establish the ability to pay.
“The new policy guidance marks a pivotal shift towards a more employer-centric approach in USCIS adjudications, as a broader range of evidence can be provided to substantiate the ability to pay. Thus, we expect to see an increased probability of approval of I-140 applications even in cases where the sponsoring employer has complex or unusual financials,” explains Sharma.
New York based, immigration attorney, Cyrus D. Mehta, told TOI that, “The new ‘Ability to Pay’ (ATP) guidance may help employers who may not have sufficient net income or be able to show that the difference between the net current assets exceed the net current liabilities in their tax returns. The guidance allows for an analysis of ‘other factors’ to demonstrate the employer’s ability to pay especially when companies operate at a loss for a period to improve their business position in the long run.”
“The new guidance might thus help startups to demonstrate their ability to pay by submitting other evidence including bank statements, personnel records, credit lines, gross sales and revenues as well as media accounts about the company and its overall reputation,” adds Mehta.
He cautions that in some instances, it could result in additional evidence being sought. “For instance, when multiple applications have been made in form I-140, the new guidance requires USCIS officers to ask an employer to demonstrate its ability to pay the wages on behalf of multiple beneficiaries,” states Mehta.



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