I-140 RFE · Employer Financial Evidence
USCIS says the petitioner has not established ability to pay the proffered wage?
An ability to pay RFE can become a dispositive issue in an employment based I-140 petition. The response should identify the required wage, the relevant priority date, what the employer actually paid the beneficiary, and what the petitioner’s financial records establish for each required period.
The RFE should be analyzed year by year and against the correct proffered wage.
For petitions that require an employer to establish ability to pay, USCIS generally examines whether the petitioner had the ability to pay the proffered wage from the priority date onward. The first step is therefore to identify the priority date, the wage stated in the labor certification or petition, and the evidence already submitted for each relevant year.
The response should not assume that revenue, gross receipts, cash in a bank account, or general statements that the company is successful automatically resolve the regulatory issue. The evidence should be tied to the applicable ability to pay analysis.
Why USCIS may issue an ability to pay RFE.
The petitioner did not submit required financial evidence.
USCIS may request federal tax returns, annual reports, audited financial statements, or other evidence authorized by the regulation.
The employer paid only part of the proffered wage.
The response should calculate the difference between wages actually paid and the required wage and determine whether the remaining evidence establishes the ability to cover that difference.
The tax return appears to show a loss.
A negative taxable income figure does not end the analysis by itself. The correct financial lines, net current assets where applicable, wages actually paid, and the complete circumstances should be reviewed.
The employer has multiple sponsored workers.
Where the same petitioner has filed multiple employment based petitions, USCIS may evaluate the employer’s ability to meet its wage obligations across the relevant sponsored workers.
Build the response around reliable financial records.
The proper evidence depends on the petitioner, its size, the period involved, and what the RFE says is missing or insufficient.
- Federal tax returns for the relevant years;
- Audited financial statements or annual reports where appropriate;
- W-2 forms, payroll records and pay statements showing wages actually paid to the beneficiary;
- Evidence identifying the correct proffered wage and priority date;
- Financial records necessary to explain net income or net current assets where those measures are relied upon;
- Evidence concerning the petitioner’s overall business circumstances when a totality analysis is relevant;
- Records concerning other sponsored workers where USCIS has raised multiple beneficiary ability to pay concerns; and
- A year by year calculation that makes clear how the evidence satisfies the employer’s wage obligation.
Do not answer an ability to pay RFE with a pile of financial documents and no calculation.
The response should tell USCIS exactly what each tax return, W-2, payroll record, audited statement, or other financial exhibit proves. If the beneficiary was already receiving some or all of the proffered wage, state the amount and explain its significance.
If the RFE focuses on one financial line while the complete record supports ability to pay through another recognized method or through the overall circumstances, the legal memorandum should identify that issue directly instead of leaving the officer to perform the analysis.
An unresolved ability to pay finding can result in I-140 denial.
Because ability to pay may be an independent eligibility requirement, proving the beneficiary’s qualifications does not cure a failure to establish the employer’s financial ability. Every independent RFE ground should be answered.
If USCIS later denies the petition, the financial finding should be reviewed together with the complete RFE response to determine whether the appropriate next step is a motion, appeal where available, or a new filing.