1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.
2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.
3. USCIS says that, in this situation, the new employer does not have to demonstrate the ability to pay during the entire period. Once the Form I-485 has been pending for 180 days, the applicant may port and present evidence. If AC-21 portability requirements are met, the dissolution or withdrawal of the I-140 petition (after the 180-day point) by the former employer does not affect portability.
4. USCIS does not specifically address why it will not accept prorated net assets as sufficient evidence to support ability to pay. Prorating is not provided for in any policy, regulation, or statute. Therefore, only current assets should be included in the calculation.
5. According to USCIS, the Yates Memo will apply only in respect of ability to pay. The adjudicating officer will look at the rate paid and not the total amount paid. It is the petitioner’s burden to demonstrate that the rate that is being paid is an appropriate increment to the proffered wage.