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USCIS Policy Update: Assessing Employers’ Financial Capacity in Employee-Based Immigration Visa Petitions

The USCIS, earlier this month, released an updated policy guidance regarding employer’s ability to pay in employment-based immigrant petitions under first, second, and third preference categories. The new policy comes into effect immediately.

• The new guidance addresses how the USCIS will assess ability to pay when a beneficiary changes employers under AC-21.
• The USCIS aims to simplify existing guidance and provide clarity for employers and adjustment of status applicants.
• Employers must demonstrate their ability to pay the offered wage from the priority date of the I-140 petition until the beneficiary obtains a Green Card.
• AC-21 allows I-485 applicants to change jobs without filing a new I-140 petition by submitting Form I-485 Supplement J. When an employee switches employers under AC-21 while the I-140 petition is pending, the USCIS will assess the ability to pay based on evidence at the time of filing.

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