Are you getting ready to file an I-140 for a Beneficiary that is not on your payroll? Before committing to sponsor, it is important to understand the impact it may have on your company. Although there are no regulations prohibiting sponsoring outside candidates, two critical elements must be met: (1) The Bona Fide Nature of the Job Offer [1] and (2) The Ability to Pay the Proffered Wage.

Demonstrating the ability to pay involves a detailed look at the Petitioner’s finances and is oftentimes a straightforward process. However, extra care must be taken while addressing the bonafide nature of the job offer. Since these scenarios are often raised together by the U.S. Citizenship and Immigration Services (USCIS), a discussion of both is provided below.

The Bona Fide Nature of the Job Offer

A major factor that the USCIS will review before making a decision on the I-140 petition is whether the job offer is truly bona fide. Although there is no explicit requirement to employ the Beneficiary until the I-485 is approved, filing an I-140 petition for an outside candidate regularly triggers an RFE, to which the Petitioner must respond with credible evidence that it is true, verifiable intent to employ the Beneficiary.

This heightened scrutiny from the USCIS may be in response to I-140 petitions filed for the sole purpose of securing an early priority date when the Beneficiary’s actual employer is unwilling to complete the immigration process; there may be no true intent to hire the Beneficiary in the future. For other companies, it is simply an effort to make the Petitioner more competitive within the market. These companies will offer to sponsor Beneficiaries based on the promise that they will join the company once their future I-485 petitions are approved. This is in line with the regulations, but it is extremely difficult to prove that the job offer is bona fide, especially if the Beneficiary will be contracted to work at a third party.

Whatever the reason may be, filing I-140 petitions for Beneficiaries who are not on the Petitioner’s payroll is not a straightforward process and we are observing that the USCIS is scrutinizing these petitions with increased regularity. To successfully respond to this type of RFE, the Petitioner must provide evidence which:

  • Identifies the location and exact address of the place of intended employment, and an outline of duties at each possible worksite, such as copies of end-client contracts under which the beneficiary will work, work orders, or statements of work.

For Beneficiaries that will be contracted to third parties, providing documentation with these specifics is nearly impossible, a fact to which the USCIS is not sympathetic. Experience shows that, without a client letter or contract specifically addressing the Beneficiary and describing the project in detail, the USCIS will not accept that the job offer is bona fide, and a denial is likely. Although some petitions may be approved without scrutiny, the Petitioner should be prepared to respond to a potential RFE before filing the I-140 petition. If the USCIS does issue an RFE, below are the preferred options for responding ranked strongest to weakest.

H-1B Transfer/ Concurrent Employment

  • This is the preferred option provided the employer has a need for the H-1B employment of the Beneficiary. Filing an H-1B transfer/concurrent employment means that the Petitioner will have a strong client/vendor letter(s) and the USCIS/DOL documentation to demonstrate the job offer is legitimate. It will be difficult/impossible to secure letters and work orders detailing her/his job duties, the Petitioner’s right to control, etc., if the Beneficiary does not transfer to the Petitioner’s company.
  • Job responsibilities need to be very similar to those listed in the Labor Certification for the offered position.

 

In-house Project (No Transfer required) [2]

  • A strong, well-documented internal project, as evidence that the Petitioner has sufficient available work with responsibilities similar to those listed in the Labor Certification (see above).

 

Multiple Projects

  • Detailed letters and work orders from the client(s) confirming availability of work with duties similar to those listed in the Labor Certification.

 

Offer Letter

  • Detailed offer letter which includes an explanation that the Labor Certification is a promise of future employment. It should reaffirm the Petitioner’s offer and, with it, Petitioner should submit as many client contracts as possible as evidence of the available work.

If an H-1B Transfer/Concurrent employment is not possible, the Petitioner may try a combination of the final three points; but, in these instances, the Officer is unlikely to be convinced that the job offer is truly bona fide and a denial is likely. USCIS inconsistently evaluates evidence when making a decision whether the job offer is truly bona fide, but experience shows that the best option is to move the candidate to the Petitioner’s payroll prior to responding to the RFE. Demonstrating that the Petitioner is paying the Beneficiary will also help to establish the Petitioner’s ability to pay the proffered wage; however, due to the high wages often required for these positions, it is not the whole story. Below is a complete discussion of how to demonstrate the Petitioner’s financial viability and its ability to pay the Beneficiary’s proffered wage.

The Ability to Pay the Proffered Wage

Another major factor that the USCIS will review before making a decision on the Beneficiary’s I-140 petition is whether the Petitioner has the ability to pay the Beneficiary’s proffered wage. Although there is no explicit requirement to pay or hire the Beneficiary until the I-485 is approved, the Petitioner must demonstrate that it could pay.

The USCIS explains [3] that, if the Beneficiary is not being paid greater than or equal to the proffered wage already, the Petitioner’s net income or net current assets can be used in lieu of payroll. As the Beneficiary is not yet an employee, the Petitioner must submit its latest Federal Tax Returns showing that either net income or net current assets exceed the proffered wage [4]. Keep in mind that net income and net current assets cannot be combined to prove the ability to pay.

It is critical to understand that once the amount of an individual Beneficiary’s proffered wage is subtracted from the Petitioner’s finances, it cannot be used again to cover the proffered wages of other I-140 Beneficiaries. Since the taxes must be used to cover the entire wages of Beneficiaries who are not on the Petitioner’s payroll, in these instances the USCIS will often issue an RFE to demonstrate that the Petitioner can cover the wages (or differences between wages paid and proffered wages) for ALL of the Petitioner’s I-140 Beneficiaries. The USCIS refers to this as “Multiple Beneficiaries”.

If there is a Multiple Beneficiaries RFE, the Petitioner will have to submit a list of all I-140s filed by the Petitioner, payroll documentation for each Beneficiary, and demonstrate that the Petitioner’s taxes will cover the difference between proffered wages and wages paid to all I-140 Beneficiaries (unless their I-485 is approved or their I-140 is canceled). For this reason, it is critical that the Petitioner consider the company’s finances (and future finances) in order to determine if it is feasible to sponsor a candidate who is not on its payroll. If the Petitioner uses its taxes to cover the entire wage, there may not be sufficient finances to cover differences in wages paid to current/future employees, which could be detrimental to these employees’ immigration processes and even detrimental to the reputation of the company.

The Petitioner must also be aware that the burden of demonstrating the ability to pay does not necessarily end once the I-140 petition is approved. Subsequent I-140 petitions may also receive this RFE and the Petitioner will again need to demonstrate its ability to pay all I-140 Beneficiaries. The Petitioner will have to reserve net income or net current assets sufficient to cover the entire proffered wage every year until the Beneficiary has an approved I-485 petition or the I-140 petition is canceled.

For some Petitioners, an attempt to remain competitive in the market by sponsoring candidates outside the company may lead to issues with employee retention within the company, as they may have difficulty getting their I-140 petitions approved due to insufficient company finances. The Petitioner must ensure that it has sufficient finances to cover the difference of its employees’ actual paid wages versus proffered wages before it should consider sponsoring outside candidates.

If you have questions about filing for a beneficiary outside the company or any other immigration-related issues, contact us at ILBSG. We put our expertise and experience to work for you to ensure you get the right advice.

 

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[1] The Petitioner desires and intends to employ the Beneficiary under the terms of the labor certification.

[2] In-House Employment:

  • Complete Itinerary of Services (well detailed);
  • An end-client letter describing the project and specifying it as an in-house project (if applicable);
  • MSA/Contracts between all parties;
  • Employment Offer Letter and Agreement.

  If the project is In-House/Proprietary:

  • Critical reviews of company projects/services in trade journals;
  • Proposed timeline for new or improved product development;
  • Marketing analysis for final product/services;
  • Analysis for products or services;
  • Company brochures, pamphlets, websites, or other printed work outlining products/services provided by the company;
  • Position description or other documentation describing the skills required to perform the job, the tools needed, the product to be developed, or the services to be provided.

 Company Documents:

  • Three most recent federal tax returns;
  • Business license, etc.;
  • Evidence of sufficient production space: office lease, office photos, etc.

[3] Interoffice Memorandum: Determination of Ability to Pay under 8 CFR 204.5(g)(2)

If the record is complete with respect to all of the required initial evidence, CIS adjudicators are not required to issue an RFE to obtain further documentation to support a decision based on the record or establish the petitioner’s ability to pay. CIS adjudicators should make a positive ability to pay determination in any one of the following circumstances:

  1. Net income: The initial evidence reflects that the petitioner’s net income is equal to or greater than the proffered wage.
  1. Net current assets: The initial evidence reflects that the petitioner’s net current assets are equal to or greater than the proffered wage.
  1. Employment of the beneficiary

The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also paid or currently is paying the proffered wage.

[4] Additional evidence such as profit/loss statements, balance sheets, bank records, or personnel records may be submitted – or even requested by the Officer – but only to supplement the record. Although bank statements are listed as acceptable supplemental evidence, the USCIS does not rely on them; they are considered secondary evidence, which may be accepted at the Officer’s discretion only in the event primary evidence (tax returns) is proven to be unavailable.

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