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This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance, effective immediately, on how it analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second and third preference employment-based immigrant visa classifications, including instances when the sponsored worker changes employers.

The guidance notes that generally, employers seeking to classify prospective or current employees under the first, second and third preference employment-based immigrant visa classifications that require a job offer “must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition until the beneficiary obtains lawful permanent residence.”

The updated guidance, which applies to petitions filed on or after January 5, 2024, explains that when the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, moves (or ports) to a new employer while the Form I-140 is pending, USCIS determines whether the petitioner meets the ability to pay requirements “only by reviewing the facts in existence from the priority date until the filing of the Form I-140.”

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