Immigration

Srinivasa Reddy Kandi: Obligations of Green Card Wage

February, 20, 2025-05:18

Share: Facebook | Twitter | Whatsapp | Linkedin | Visits: 38452 | :2821

---

Obligations of Green Card Wage

A common inquiry we receive from both employees and employers pertains to the wage requirements associated with Green Card sponsorship—specifically, whether companies that sponsor employees are obligated to pay the designated wage amount. Many individuals posing this question are already acquainted with H-1B wage regulations and recognize that employers sponsoring H-1B visas must compensate at or above the wage specified in the Labor Condition Application (LCA). However, it is important to note that these regulations do not necessarily extend to I-140 petitions or Green Card sponsorships.

Comparison of H-1B Wage Requirements and Green Card (I-140) Wage Standards

In the context of the H-1B visa process, employers are mandated to ensure compliance by paying at or above the wage indicated on the H-1B LCA. Conversely, for I-140 petitions and the Green Card process, the requirements differ. Sponsoring companies are required to demonstrate their capacity to pay the wage specified in the PERM ETA 9099 Labor Certification (commonly known as the PERM wage), rather than being required to pay that amount outright.

This distinction often leads to further inquiries, making it essential to consider two scenarios:

1. Awaiting Green Card Approval: This encompasses the I-140 stage and/or a pending I-485 (Adjustment of Status).
2. Following Green Card Approval: This refers to the period after obtaining Lawful Permanent Residence (Green Card).

The Importance of This Distinction

Upon the approval of your Green Card, your salary ceases to be a concern from the standpoint of immigration compliance. According to 8 CFR 204.5(g)(2), any Form I-140 or I-485 submitted for an employment-based Green Card that necessitates a job offer must provide proof that the sponsoring employer possesses the financial capacity to pay the proposed wage. This requirement remains in effect from the priority date until the Beneficiary achieves lawful permanent resident status.

Situation: Post-Green Card Approval

If you have successfully secured your Green Card and are receiving a salary that is below the PERM wage, you have two alternatives:

Continue with your current employer at the offered wage, or
Pursue employment opportunities elsewhere that meet your salary expectations.
Once your Green Card is granted, you gain complete economic freedom to work for any employer, in any position, and in any location.
Scenario: Pending I-140 or I-485 Approval

In instances where your case is at the I-140 stage or your I-485 remains unresolved, the pivotal consideration is whether the employer can substantiate its capacity to pay the PERM wage. A denial of the case will not occur solely due to the employer's failure to pay the PERM wage, as long as the employer satisfies the ability-to-pay requirement.

How Employers Demonstrate Ability to Pay

The guidelines established by USCIS, as articulated in the Yates Memorandum, delineate three methods through which a sponsoring employer can validate its ability to pay the proposed wage:

1. Wages Already Paid: Providing evidence that the wages disbursed to the sponsored employee are equal to or greater than the offered wage (through W-2 forms or wage statements).
2. Net Income: Presenting net income that surpasses the offered wage (via tax returns).
3. Net Assets: Demonstrating net assets that exceed the offered wage (through tax returns or financial statements).

For employers with a workforce exceeding 100 employees, a letter from a financial officer affirming the ability to pay is also deemed acceptable. USCIS mandates evidence for only one of these three criteria to reach a favorable determination.

Should the employer be unable to independently satisfy any of these criteria, USCIS may still grant approval for the petition if the disparity between the offered wage and the wages paid is compensated by the employer’s net income or net assets?

There are several factors that may lead to an employee receiving compensation below the PERM wage:

Discrepancies in H-1B Wages: The wage associated with the H-1B visa may fall short of the PERM wage.
Prospective Employment: An employer might be sponsoring an individual for a position that they have not yet commenced, with the understanding that employment will begin upon the approval of their Green Card.
It is not uncommon for employees to receive less than the PERM wage during the Green Card application process. The USCIS frequently approves cases where the employer can substantiate their capacity to pay, even if the current compensation does not meet the specified wage.

Essential Considerations for Employees and Employers

For employees earning below the PERM wage:

The legal framework emphasizes the employer's capacity to pay rather than the actual wages disbursed.
For employers offering less than the PERM wage:

It is important to ensure that your tax returns, audited financial statements, or other financial records demonstrate a robust financial standing to fulfill the ability-to-pay requirement.
If you find yourself in a situation where your compensation is below the PERM wage, it is important to understand that the law prioritizes the employer's ability to pay over the actual payment made. For employers who are compensating less than the PERM wage, it is vital that your financial documentation, including tax returns, reflects a sound financial condition to address any wage discrepancies.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.