When employers are looking to sponsor employees for an employment-based immigrant visa, they must demonstrate the ability to pay the required annual salary to the employee from the date either the PERM Labor Certification or the immigration petition is filed until the beneficiary receives lawful permanent residence. This requirement applies to prospective employees, even when they change employers while awaiting the approval of their adjustment of status—which often happens because of the lengthy timeframes needed to process these applications.
In 2024, the United States Citizenship and Immigration Services (USCIS) released updated guidance on the process, specifically related to cases where an employee changes jobs in the middle of the application process. These changes impact both employers and employees who are seeking Green Card status and working for American-based companies while the process plays out.
How This Process Changed in 2024
In 2024, USCIS updated its guidance on the “ability to pay” requirement when employees change jobs during the immigration process. Under the American Competitiveness in the Twenty-First Century Act (AC21), employees with a pending Form I-140 petition can switch to a new employer. However, the new employer must demonstrate their ability to pay the wage starting from the priority date of the original petition, not just from the time the employee begins work.
This update means that when an employee transfers to a new company, the financial responsibility to prove the ability to pay applies from the date the employee originally applied for the Green Card, even if the employee hasn’t yet started at the new job. For employers, this adds a financial consideration when hiring an employee who is partway through the immigration process.
How the Process Works
The best way to explore this process is through a hypothetical example. Consider an employee who lands a job with Company A on January 1st, with a salary of $100,000, and submits their Green Card application the same day. Although the employee isn’t starting work immediately, Company A must demonstrate the ability to pay the prorated portion of the $100,000 salary from January 1st until the application is approved.
If, during processing, the employee then transfers to Company B on February 1st, the ability to pay requirement still applies from January 1st—the date the Green Card application was submitted—not from when the employee begins at Company B.
Company B must prove their financial capability to meet the wage obligation starting from the original application date through the time that processing takes place which is roughly 10 months.
Note: Premium processing can expedite the I-140 petition to 15 business days for a $2,805 fee, but without it, processing may take up to 10 months.
Make the Right Choices for Your Organization and Immigration Status
Choosing to sponsor an employee for a Green Card involves several financial and legal obligations that need to be accounted for before you move forward. Valvo & Associates is the expert in U.S. business immigration law and can help guide you through these responsibilities and ensure that you meet the necessary requirements.
If your company is dealing with employee transfers, Green Card sponsorships, or has questions about the “ability to pay” standard, contact us today to discuss your situation and how we can assist you in achieving a successful outcome.