Quick Hits

  • USCIS’s new “ability to pay” policy applies in cases where foreign workers who are beneficiaries of pending I-140 petitions filed on their behalf by sponsoring employers have filed adjustment of status (I-485) applications and are seeking to transfer their sponsorships to new employers under AC21 portability.
  • When adjudicating I-140 petitions under this scenario, USCIS will examine the original petitioning employer’s financial ability to pay the offered wage from the priority date until the date the I-140 petition is filed.
  • This new policy applies to all I-140 petitions filed on or after January 5, 2024.

The USCIS guidance establishes a bright-line cutoff for the prior employer’s obligation to demonstrate a financial ability to pay the offered wage, which now stops on the date USCIS accepts the I-140 petition for filing.

Under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), foreign nationals who have pending employment-based adjustment of status applications may change their employment to new employers without impacting their applications if their adjustment of status applications have been pending for 180 days or more and the new employment is in the same or similar occupational classification. This can provide much-needed flexibility for employment-based adjustment of status applicants who face extensive delays stemming from green card backlogs that can range from several years to more than a decade.

There has been some uncertainty regarding the extent of a sponsoring employer’s obligation to demonstrate its ability to pay a beneficiary the proffered wage in the I-140 petition if the beneficiary seeks to change employment under AC21 before USCIS approves the I-140 petition. USCIS’s new policy establishes a bright-line rule to limit the original sponsoring employer’s obligation to demonstrate its ability to pay to the period from the priority date until the I-140 petition is filed. This guidance was issued as part of USCIS’s continuing efforts to provide flexibility to sponsoring employers and to support job mobility and flexibility for foreign workers with pending employment-based adjustment of status applications.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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