Initial Evidence
This memo continues by providing further instruction on how the initial evidence should be used to determine ability to pay the proffered wage. Unfortunately, such instruction unnecessarily limits the financial ability examination to any one of the following three equations:
"(1) Net income - The initial evidence reflects that the petitioner’s net income is equal to or greater than the proffered wage.
(2) Net current assets - The initial evidence reflects that the petitioner’s net current assets are equal to or greater than the proffered wage.
(3) Employment of the beneficiary - The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage."
If none of these formulas establishes ability to pay, the memo notes that adjudicators may deny the petition without first issuing an RFE. These formulas disregard long-accepted practices that have used a combination of any of the three options listed above. For example, in a case where the proffered wage is $90,000 per year, and the beneficiary received wages of $60,000 in the year the priority date was established, the petitioner would need to document $30,000 to establish ability to pay. Under the first option in the memo, if the petitioner’s net income was $20,000, the petitioner would not meet the financial ability test because of a $10,000 deficit ($30,000 - $20,000 = $10,000). Consequently, the case would be denied. If the third option is used, the financial ability test would also fail because the beneficiary was paid less than the proffered wage. The second option is the most limited in that it uses the net current assets analysis in a substantially narrower way than accepted practices.
http://www.ilw.com/articles/2005,0118-guevara.shtm
This memo continues by providing further instruction on how the initial evidence should be used to determine ability to pay the proffered wage. Unfortunately, such instruction unnecessarily limits the financial ability examination to any one of the following three equations:
"(1) Net income - The initial evidence reflects that the petitioner’s net income is equal to or greater than the proffered wage.
(2) Net current assets - The initial evidence reflects that the petitioner’s net current assets are equal to or greater than the proffered wage.
(3) Employment of the beneficiary - The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage."
If none of these formulas establishes ability to pay, the memo notes that adjudicators may deny the petition without first issuing an RFE. These formulas disregard long-accepted practices that have used a combination of any of the three options listed above. For example, in a case where the proffered wage is $90,000 per year, and the beneficiary received wages of $60,000 in the year the priority date was established, the petitioner would need to document $30,000 to establish ability to pay. Under the first option in the memo, if the petitioner’s net income was $20,000, the petitioner would not meet the financial ability test because of a $10,000 deficit ($30,000 - $20,000 = $10,000). Consequently, the case would be denied. If the third option is used, the financial ability test would also fail because the beneficiary was paid less than the proffered wage. The second option is the most limited in that it uses the net current assets analysis in a substantially narrower way than accepted practices.
http://www.ilw.com/articles/2005,0118-guevara.shtm
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