The second step in the three step process for acquiring a greencard involves the filing of Form I-140. This essential step in the acquisition of a greencard demonstrates a central part of the process – the employer´s ability to actually pay the required ATP wage. At times, this can be a challenging step but there are of course certain steps which an employer may take to increase the likelihood of receiving an approval for a filed I-140.
Requirements for Ability to Pay
In the large majority of cases, the employer filing a I-140 has to prove that they can actually meet the offered wage as indicated on the PERM labor certification. USCIS examines the “priority date” or date at which the PERM labor certification was filed as a reference for when the offered wage must start being paid. USCIS requires that the petitioner provide evidence such as financial documents which generally are provided in the form of tax returns, annual reports or other audited financial statements.
A good option for a petitioner to show its compliance with ATP is by demonstrating that the worker has in fact been employed by the petitioner since the actual filing date of the PERM labor certification and has been earning a salary which is greater than or equal to the offered/required wage. It is important to know that this is not in fact a required practice. W-2s and paystubs which indicate the same will most likely be enough to satisfy a company´s ATP.
In the case that the offered wage has not been paid since the filing date, an employer is able to show ATP with documents that demonstrate the company´s net income or net current assets as being equal to or greater than the offered wage or even that the company is able to pay the wage differential.
ATP Requirement Extensions
Concerns about an employer´s ability to pay will become evident when adjudicating the I-140 petition. Nonetheless, the ATP requirement will continue until the beneficiary is awarded permanent resident status. This means that USCIS is technically allowed to demand evidence of a petitioner´s ATP until the final approval for a green card.
Complications from Low Net-Operating Profits
ATP begins on the date of the PERM filing. If after the PERM is filed and a petitioner suffers a bad financial year, complications may arise. The same could be said for companies earning a profit, but not enough to demonstrate ability to maintain the beneficiary´s proposed salary. These problems could even result in denials
In order to properly secure an I-140, all ATP issues must be thoroughly addressed. Anticipation of these types of problems can truly help the PERM process move along when it is in its I-140 stage. Consultation with an experienced immigration attorney is highly recommended.
Beeraj Patel, Esq.
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