Green Card Ability to Pay Issue Getting Nastier By the Day

It used to be case that ability to pay was an issue at the U.S. Citizenship and Immigration Services at the time of filing of Form I-140 immigrant visa petition in an employment-based green card case.  The Department of Labor has always had the right to look into an employer’s ability to pay in reviewing the foreign labor certification applications a.k.a. PERM labor applications.

In response to a denial of labor certification application by the Department of Labor’s Certifying Officer in a recent case, the employer filed an appeal with Board of Alien Labor Certification Appeals (“BALCA”).  Upon appeal, BALCA upheld the denial by the Certifying Officer stating that the employer’s ability to pay the wages mentioned in a PERM labor application is not met where such ability to pay has been established by consultant-employees generating the revenues/funds.  This is an extremely narrow interpretation of law applied by BALCA and means that a great number of consulting companies sponsoring PERM labor applications on behalf of their consultant-employees are likely to see unfavorable decisions from the Department of Labor/BALCA.

Ability to pay must be met from the date of filing of the labor application up until the green card case has been fully adjudicated.  The best way to show ability to pay the wage mentioned on the PERM labor application is to actually pay the said wage each year through the full adjudication of a green card case.  There are other ways to demonstrate ability to pay and a careful analysis by a legal professional is important prior to initiating a green card case.