The Yates Memo, officially titled “Ability to Pay under Section 204.5(g)(2)” and issued by the U.S. Citizenship and Immigration Services (USCIS) on May 4, 2004, provides guidance on how to determine an employer's ability to pay the proffered wage from the priority date onwards in employment-based immigrant visa petitions, including those filed on Form I-140, Immigrant Petition for Alien Worker.

According to the Yates Memo, USCIS officers are instructed to consider several factors when assessing an employer's ability to pay the proffered wage.

These factors include:

1. Net Income: The employer's net income as shown in its financial statements. If the net income is equal to or greater than the proffered wage, it is considered sufficient evidence of the employer's ability to pay.
2. Net Current Assets: If the employer's net income is not sufficient, USCIS will look at the employer's net current assets. If the net current assets are equal to or greater than the proffered wage, this can also demonstrate the employer's ability to pay.
3. Payment of Wages: Evidence that the beneficiary has been employed and paid by the petitioning employer at the proffered wage or higher since the priority date is a direct way to prove ability to pay. For beneficiaries not yet employed by the petitioner, other forms of evidence must be provided to demonstrate financial ability.

The memo emphasizes that the ability to pay must be proven from the priority date of the petition until the beneficiary obtains lawful permanent resident status. The priority date is usually the date the labor certification application (PERM) is filed with the Department of Labor (DOL) or, if a labor certification is not required, the date the I-140 petition is filed with USCIS.

The Yates Memo also clarifies procedures for cases where there are discrepancies or challenges in the financial evidence presented, offering a more structured approach to adjudicating these aspects of the I-140 petitions. It provides a framework for both petitioners and USCIS officers to assess financial viability and ensure compliance with the ability to pay requirement.

Employers are encouraged to provide comprehensive financial documentation and, if necessary, supplemental evidence such as employment contracts or letters detailing the terms of employment to substantiate their claims. In situations where traditional financial evidence might not clearly demonstrate ability to pay, the memo allows for a broader interpretation of financial health and capabilities.

This memo significantly impacts how employment-based I-140 petitions are adjudicated, ensuring a consistent and fair assessment of an employer's ability to support its prospective foreign employees financially.

The scenario becomes particularly complex when an employer experience financial losses. However, as demonstrated in the Matter of Sonegawa case, the USCIS may still approve an I-140 petition despite the company's financial losses. In Sonegawa, the Administrative Appeals Office (AAO) focused on the totality of the evidence presented to ascertain the employer's ATP. Even in years of financial loss, an employer can demonstrate ATP by showing that it has paid the offered wage to the beneficiary since the priority date or by providing evidence of net income, net current assets, or other financial metrics that indicate the ability to pay the proffered wage.

Employers must proactively address ATP concerns by preparing and presenting a comprehensive financial picture that convincingly demonstrates their capacity to pay the offered wage. This includes detailed documentation of the beneficiary's salary payments (if already employed), financial statements, and any additional evidence that supports the employer's ATP. In cases of financial difficulty or when sponsoring multiple employees, employers may need to show ATP for all sponsored workers, underscoring the importance of strategic planning and legal consultation.

It's crucial for employers facing ATP challenges, especially those in situations similar to the Matter of Sonegawa, to seek the guidance of experienced immigration attorneys. These professionals can provide valuable insights into the nuances of immigration law, helping to navigate the complexities of the ATP requirement and increasing the chances of I-140 petition approval. The Matter of Sonegawa case underscores that, with the right approach and thorough documentation, it is possible to overcome ATP concerns, even in less-than-ideal financial circumstances.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.