Can Companies in Financial Straits Hire Foreign Workers?
by Elizabeth R. Blandon

Although it seems logical that businesses experiencing tough times are the ones most in need of all the help they can find, the economic downturn limits companies’ ability to sponsor foreign workers. Often, the government demands proof that the owners demonstrate the “ability to pay” the salary of those workers in the form of annual reports, tax returns or audited financial statements.

Companies sponsor foreigners to work in the U.S. either temporarily or permanently. If temporarily, the worker obtains a visa. If permanently, the worker obtains residency, which is the ability to live in this country legally. In either case, to protect American workers from losing their jobs to cheaper labor, companies must pay foreign workers the prevailing wage of the industry. That salary amount is determined by the Department of Labor.

Small companies in particular seem to be prime targets for requests for information by the government, which perhaps believes that hiring should freeze in this economy. The truth is quite the contrary. Persons who help businesses save money or those who help find new clients, like marketing professionals, are in great demand.

So, if the bottom line of the latest corporate tax return is in the red, how can a company prove it has the ability to pay a new additional salary? The easiest evidence is payroll records demonstrating that the company is meeting its obligations to the foreigner. If the employee has not yet started with the company, the Citizenship and Immigration Service will rely on the net income or the net assets of the business. If either of these is greater than the prevailing wage, the company has demonstrated ability to pay. Finally, if the company is a sole proprietorship, the personal assets of the owner can be considered, including the equity in any real estate.

Although the author is an immigration attorney, this information is not intended as legal advice. For further information, including the attorney’s credentials, schedule a consultation.