USCIS Issues Policy Guidance on "Ability to Pay" Requirement When Adjustment of Status Applicants Change Employers

The U.S. Citizenship and Immigration Services (USCIS) has issued new policy guidance on how the ability of an employer to pay the offered wage is analyzed in certain employment-based immigrant visa classifications, including instances when the sponsored worker changes employers​​.

Generally, employers seeking to classify prospective or current employees under first-, second-, and third-preference employment-based immigrant visa classifications requiring a job offer must demonstrate their ongoing ability to pay the offered wage to the beneficiary from the immigrant petition's priority date until the beneficiary obtains lawful permanent residence.

The updated guidance explains that when the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, moves (or "ports") to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while the Form I-140 is pending, USCIS will determine whether the petitioner meets the ability to pay requirements by only reviewing the facts in existence from the priority date until the filing of the Form I-140​​.

This guidance, contained in Volume 6, Part E, Chapter 4 of the Policy Manual, is effective immediately upon publication and applies prospectively to petitions filed on or after that date. It builds on previous guidance from March 15, 2023, on how USCIS analyzes employers' ability to pay the offered wage, and is one of many recent actions to support adjustment of status applicants​​.