(c) Assessing the Petitioner’s Ability to Pay the Required Wage 

The regulations require that any petition that requires a job offer be accompanied by evidence that the U.S. employer had the ability to pay the proffered wage at the time the labor certification application was filed and continuing until the beneficiary obtains permanent residence.  

Note: Establishing that the employer has the ability to pay the proffered wage is different from establishing that the employer is already paying the proffered wage.  A petition may still be approved if the employer can demonstrate the financial ability to pay the required wage and the intent to do so once the Form I-485 is approved or the beneficiary immigrates, even if the petitioner is not paying that wage when it files the Form I-140, or the beneficiary has not yet been employed by the petitioner. 

8 CFR 204.5(g)(2) requires that the evidence be in the form of annual reports, federal tax returns, or audited financial statements.  In a case where the prospective employer employs 100 or more workers, you may accept a statement from a financial officer of the organization regarding its ability to pay the proffered wage. 

In appropriate cases, the petitioner can submit or USCIS may request additional evidence such as profit/loss statements, bank account records, or personnel records. The burden remains on the petitioner to establish its ability to pay the wage.

Depending on corporate structure, acceptable evidence can include: 

• Publicly traded corporations - annual reports are sufficient if they contain detailed financial information, such as audited or reviewed financial statements issued by an independent accounting firm.. 
• Privately held corporations - audited or reviewed financial statements from an independent accounting firm. 
• Partnerships - audited or reviewed financial statements from an independent accounting firm. 
• Non-profit institutions - a letter from an inside financial officer is sufficient for large, well-established institutions.  Documentary evidence of the non-profit’s financial status may be required for institutions that are not as well-established. 

 Sometimes companies will operate at a loss for a period of time to improve their business position in the long run.  A prime example of that would be research and development costs on a product line that is not expected to generate revenue for several years. In those instances the documentation should fully explain the sources of funding for the entity (or unit) and the expected profit potential.  Whether the company can demonstrate it has the ability to pay the alien the wages described in the petition will depend on the specific facts presented.  You should exercise discretion in requesting evidence of ability to pay.  In the case of large well-known corporations and other well-known entities such as universities that have established records of filing petitions with USCIS, the financial information contained on the petition is usually sufficient.