1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ECONO INN CORP., et al., 

 Plaintiffs, Case No. 15-cv-10991 

 Hon. Matthew F. Leitman 

v. 

RON ROSENBERG, et al., 

 Defendants. 

__________________________________________________________________/ 

OPINION AND ORDER (1) DENYING PLAINTIFFS’ MOTION FOR 

SUMMARY JUDGMENT (ECF #18) AND (2) GRANTING DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT (ECF #19) 

 In 2001, Plaintiff Ketankumar Patel (“Patel”), a citizen of India, began 

working for Plaintiff Econo Inn Corp. (“Econo Inn,” collectively with Patel, 

“Plaintiffs”) as a motel manager. In 2007, Econo Inn filed an I-140 Immigration 

Petition for an Alien Worker on Patel’s behalf (the “I-140 Petition”). The I-140 

Petition, if granted, would have allowed Patel to obtain an employment visa and, 

eventually, to apply for lawful permanent residency in the United States. 

 On February 27, 2009, the United States Citizenship and Immigration 

Service (“USCIS”) denied the I-140 Petition. Plaintiffs appealed the denial to the 

USCIS Administrative Appeals Office (the “AAO”), which ultimately affirmed the 

denial on August 9, 2013. Plaintiffs thereafter filed this action challenging the 

denial. (See Complaint, ECF #1.) Plaintiffs named as Defendants Ron Rosenberg, 

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Chief of the AAO, Leon Rodriguez, Director of USCIS, and Jeh Johnson, the 

Secretary of Homeland Security (collectively “Defendants”). (See id.) 

 The parties have now filed cross-motions for summary judgment. (See ECF 

##18, 19.) For the reasons that follow, the Court will GRANT Defendants’ 

motion and DENY Plaintiffs’ motion. 

RELEVANT FACTUAL BACKGROUND, STATUTORY AND 

REGULATORY FRAMEWORK, AND PROCEDURAL HISTORY 

 Econo Inn is a Flint, Michigan, company that opened a motel of the same 

name in 1986. (See Administrative Record, ECF #17-1 at 5, Pg. ID 98.) Patel is a 

43-year-old native and citizen of India who entered the United States on July 20, 

1999. (See id. at 4, Pg. ID 97.) Patel is not a lawful permanent resident of this 

country. (See id.) Patel began working for Econo Inn shortly after his arrival in 

the United States. 

 In 2001, Plaintiffs began the process of seeking a skilled worker 

employment visa for Patel pursuant to the Immigration and Nationality Act (, 8 

U.S.C. § 1101 et seq. (the “INA”). In Woody’s Oasis, v. Rosenberg, No. 13-cv367, 2014 WL 413503 (E.D. Mich. Feb. 4, 2014), the United States District Court 

for the Western District of Michigan provided the following helpful overview of 

skilled worker visa application process under the INA: 

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Under the Immigration and Nationality Act (INA), a noncitizen skilled worker may obtain a visa to work in the 

United States. 8 U.S.C. § 1153(b)(3)(A)(i). Such visas 

are available only if there are insufficient workers who 

are able, willing, and qualified to fill the position that the 

non-citizen seeks to fill, and the employment of the noncitizen would not adversely affect the wages and 

conditions of U.S. workers. 8 U.S.C. § 1182(a)(5)(A)(i). 

Authority to administer the INA has been delegated to 

the Department of Homeland Security and sub-delegated 

to the USCIS. 8 U.S.C. §1103(a)(1); 8 C.F.R. § 2.1. 

If an employer seeks to employ a non-citizen skilled 

worker, the employer and non-citizen must follow a 

three-step process. See Matovski v. Gonzalez, 492 F.3d 

722, 726-27 (6th Cir. 2007). First, the employer must 

file an application with the DOL, and obtain a 

certification from the DOL stating that there are 

insufficient qualified, able, and willing U.S. workers to 

fill the position. 8 U.S.C. § 1153(b)(3)(C); 1182 

(a)(5)(A)(i)(I). As part of the certification, the DOL 

establishes the wage that the prospective employer must 

pay the prospective employee (the proffered wage). 8 

U.S.C. § 1182(p). 

If the DOL approves the labor certification, the employer 

must then file an I-140 petition with the USCIS. See

Matovski, 492 F.3d at 727. The relevant regulation 

provides that the employer must show that it has the 

ability to pay the proffered wage starting on the date that 

the employer filed its application with the DOL (the 

priority date) and continuing until the USCIS approves 

the petition. 8 C.F.R. § 204.5(g)(2). Evidence of the 

ability to pay may take the form of annual reports, federal 

tax returns, or audited financial statements. Id. In some 

instances, additional evidence such as profit/loss 

statements, bank account records, or personnel records 

may be used to establish the ability to pay. Id. 

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Finally, the non-citizen may apply for adjustment of 

status while the I-140 application is pending or after it is 

approved. 8 U.S.C. § 1255(a)(3). Approval of the 

application for adjustment of status is contingent upon 

approval of the employer’s I-140 petition. 8 U.S.C. § 

1255(a). 

Woody’s Oasis, 2014 WL 413503 at *2-3. 

On April 30, 2001, Econo Inn filed an Application for Alien Employment 

Certification (the “Certification Application”) with the Department of Labor (the 

“DOL”) on Patel’s behalf. (See Admin. R., ECF #17-1 at 8, Pg. ID 101.) Econo 

Inn sought to hire Patel as the full-time manager for its motel. (See id.) The DOL 

approved the Certification Application and set the “proffered wage” for Patel (that 

is, the Wage Econo Inn would be required to pay Patel) at $43,800 per year. (See

Oct. 31, 2012, AAO Decision, ECF #17-4 at 147, Pg. ID 1068.) 

 Following the DOL’s certification, Econo Inn filed the I-140 Petition with 

USCIS seeking to classify Patel as an alien beneficiary eligible for an immigration 

visa based on his employment as the motel’s manager. (See Admin. R., ECF #17-1 

at 4, Pg. ID 97.) Patel also filed an I-485 Application to Adjust Status in which he 

sought to change his legal status from an undocumented immigrant to a lawful 

permanent resident pending the approval of the I-140 Petition. (See Admin. R. 

ECF #17-4 at 247, Pg. ID 1168.) 

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On December 26, 2008, USCIS notified Econo Inn that it had not provided 

sufficient evidence of its ability to pay Patel’s proffered $43,800 wage, as Econo 

Inn was specifically required to do under an applicable federal regulation, 8 C.F.R. 

§ 204.5(g)(2) (the “Ability to Pay Regulation”). (See Admin. R., ECF #17-4 at 

138, Pg. ID 1059.) USCIS requested that Econo Inn supplement the I-140 Petition 

with, among other things, audited financial statements, business tax returns, 

shareholder information, and Patel’s Internal Revenue Service (“IRS”) W-2 forms 

dating back to 2001. (See Admin. R., ECF #17-1 at 66-67, Pg. ID 159-60) Econo 

Inn then supplemented the I-140 Petition with (1) Patel’s 2007 and 2008 W-2 

forms (see id. at 73-75, Pg. ID 166-67); (2) Patel’s June 2008 payroll vouchers (see 

id. at 77-79, Pg. ID 169-71); (3) a statement from Econo Inn’s certified public 

accountant (see id. at 80-82, Pg. ID 172-74); (4) Econo Inn’s operating cash flow 

statements and monthly bank statements from 2001-2007 (see Admin R., ECF #17-

1 at 84 – ECF #17-2 at 110, Pg. ID 182-479); (5) Econo Inn’s complete tax returns, 

including shareholder filings from 2001-2007 (see Admin R., ECF #17-2 at 112-

73; Pg. ID 481-542); and (6) the personal tax returns for Econo Inn’s sole 

shareholder, Dilip Patel. (See Admin R., ECF ##17-2 – 17-4, Pg. ID 550-1012.) 

 USCIS reviewed Econo Inn’s supplemental documents and denied the I-140 

Petition on the basis that Econo Inn failed to establish its ability to pay Patel’s 

proffered wage. (See Admin. R., ECF #17-4 at 139, Pg. ID 1060.) USCIS 

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concluded that “after a complete review of the record, the evidence does not 

establish that the petitioner had the ability to pay the offered wage when the 

priority date was established (April 30, 2001), or that it continued to have such 

ability through to the present.” (Id.) 

On March 31, 2009, Econo Inn appealed USCIS’s decision to the AAO, and 

the AAO upheld the I-140 Petition’s denial on October 31, 2012. (See Oct. 31, 

2012, AAO Decision, ECF #17-4 at 151, Pg. ID 1072.) Econo Inn then filed a 

motion to reopen and a motion to reconsider with the AAO (the “Motion for 

Reconsideration”). (See Aug. 9, 2013, AAO Decision, ECF #1-2 at 5, Pg. ID 19.) 

On August 9, 2013, the AAO ruled on the Motion for Reconsideration and 

affirmed the portion of its earlier decision in which it had concluded that Econo 

Inn failed to establish its ability to pay Patel’s proffered wage.1

 (See id.) 

On March 16, 2015, Plaintiffs filed this action against the Defendants. (See

Compl., ECF #1.) Plaintiffs ask this Court to reverse the AAO’s decision 

affirming the denial of the I-140 Petition. 

The parties have now filed cross-motions for summary judgment. (See ECF 

##18, 19.) Pursuant to Local Rule 7.1(f)(2), the Court concludes that oral 

argument would not aid its decision on the summary judgment motions, and for the 

                                                            

1 The AAO withdrew the portion of its October 31, 2012, decision concluding that 

Econo Inn had failed to establish that Patel qualified for the management position. 

(See Aug. 9, 2013, AAO Decision, ECF #1-2 at 6, Pg. ID 20.) That portion of the 

decision is not at issue in this case. 

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reasons stated below, it grants Defendants’ motion for summary judgment and 

denies Plaintiffs’ motion. 

ANALYSIS 

Plaintiffs raise two main arguments in their motion for summary judgment. 

First, Plaintiffs argue that the Ability to Pay Regulation is ultra vires to the INA 

and that the Defendants therefore may not deny the I-140 Petition on the ground 

that Econo Inn failed to satisfy that regulation. (See Pls.’ Br., ECF #18 at 9-10, Pg. 

ID 1204-05.) Second, Plaintiffs argue that even if the Ability to Pay Regulation is 

valid, the Defendants arbitrarily and capriciously concluded that Econo Inn lacked 

the ability to pay Patel’s proffered wage. (See id.) Defendants counter that the 

proffered wage requirement is not ultra vires to the INA and that they reasonably 

determined that Econo Inn had failed to demonstrate its ability to pay the proffered 

wage. (See Defs.’ Br., ECF #19 at 13, 20, Pg. ID 1274, 1281.) 

A. The Ultra Vires Challenge to the Ability to Pay Regulation 

1. Standard of Review 

“In determining whether an agency regulation is ultra vires, [a federal court] 

appl[ies] the two step Chevron2

 analysis.” Garfias-Rodriguez v. Holder, 702 F.3d 

504, 525 (9th Cir. 2012) (en banc); see also Hachem v. Holder, 656 F.3d 430, 438 

(6th Cir. 2011) (applying Chevron test to determine “whether or not the regulation 

                                                            

2 Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-

43 (1984). 

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conflicts with the enabling statute”). Under Chevron’s first step, a federal court 

“first look[s] at the statute upon which the regulation is based.” Hachem, 656 F.3d 

at 438. If the court determines that “‘Congress has directly spoken to the precise 

question at issue,’ then that is the end of the inquiry.” Id. (quoting Chevron, 467 

U.S. at 842-43). “The unambiguously expressed intent to Congress controls.” Id. 

However, “if the statute is silent or ambiguous with respect to the specific issue,” 

then a federal court must proceed to the second step of the Chevron analysis and 

determine whether the agency has provided a “permissible construction of the 

statute.” Id. (quoting Chevron, 467 U.S. at 842-43). In conducting the second step 

of this analysis, a reviewing court “may not substitute its own construction [of the 

statute] for the reasonable interpretation of an agency.” Hosp. Corp. of America, 

348 F.3d 136, 141 (6th Cir. 2003) (quoting Peoples Fed. Sav. & Loan Ass’n of 

Sidney v. Comm’r Internal Revenue, 948 F.2d 289, 300 (6th Cir. 1991)). 

2. The Ability to Pay Regulation Is Reasonable Under Chevron and 

Is Not Ultra Vires to the INA 

Under Chevron, the first question with respect to Plaintiffs’ ultra vires

challenge to the Ability to Pay Regulation is: does the INA expressly or 

unambiguously require an employer seeking an employment visa on behalf of an 

alien beneficiary to demonstrate its ability to pay that employee’s proffered wage? 

It does not. Thus, this Court must proceed to Chevron’s second step to determine 

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whether the Ability to Pay Regulation rests upon a reasonable construction of the 

INA. 

The Ability to Pay Regulation provides as follows: 

Any petition filed by or for an employment-based 

immigrant which requires an offer of employment must 

be accompanied by evidence that the prospective United 

States employer has the ability to pay the proffered wage. 

The petitioner must demonstrate this ability at the time 

the priority date is established and continuing until the 

beneficiary obtains lawful permanent residence. 

Evidence of this ability shall be either in the form of 

copies of annual reports, federal tax returns, or audited 

financial statements . . . . In appropriate cases, additional 

evidence, such as profit/loss statements, bank account 

records, or personnel records, may be submitted by the 

petitioner or requested by the Service. 

8 C.F.R. § 204.5(g)(2). 

The Ability to Pay Regulation has its origin in the 1977 Board of 

Immigration Appeals’ (the “BIA”) ruling in Matter of Great Wall, 16 I. & N. Dec. 

142, 1977 WL 39236 (Bd. Immigration App. Mar. 16, 1977).3

 In Matter of Great 

Wall, the BIA upheld the denial of a petition for a skilled worker visa on the 

ground that the employer-application failed to demonstrate the employer’s ability 

to pay the proffered wage. See id. The BIA explained that requiring a 

                                                            

3

 According to the AAO, the Ability to Pay Regulation “codifies” the Matter of 

Great Wall decision. See In re [Identifying Information Redacted by Agency], 

2014 WL 4294327, at *4 (Dep’t. Homeland Sec. Aug. 6, 2014) (citing Matter of 

Great Wall for the proposition that “consideration of whether the petitioner has the 

ability to pay the proffered wage should necessarily focus on the circumstances as 

of the date of filing, later codified at 8 C.F.R. § 204.5(g)(2)”).

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demonstration of present ability to pay was fully consistent with the relevant 

provisions of the INA: 

At the time that Section 212(a)(14) was originally 

enacted, the drafters of the Immigration and Nationality 

Act stated that the purpose of the provision was “to 

provide strong safeguards for American labor and to 

provide American labor protection against an influx of 

aliens entering the United States for the purpose of 

performing skilled or unskilled labor where the economy 

of individual localities is not capable of absorbing them 

at the time they desire to enter this country.” [] H.R. Rep. 

No. 1365, 82nd Cong. 2nd Session (1952), reprinted in 

(1952) U.S. Code Cong. & Ad. News 1705. . . . 

Section 204(a) of the Act requires the filing of a visa 

petition for classification under section 203(a)(6). Section 

204(b) states, among other things, “After an investigation 

of the facts in each case, and after consultation with the 

Secretary of Labor with respect to petitions to accord a 

status under Section 203(a)(3) or (6), the Attorney 

General shall, if he determines that the facts stated in the 

petition are true and that the alien in behalf of whom the 

petition is made is . . . eligible for a preference status 

under Section 203(a), approve the petition . . . .” [] 

When a sixth-preference petition is filed,4

 it seeks to 

establish that the employer is making a realistic job offer 

to an alien who is qualified, and that the proposed 

employment will not displace United States workers at 

the time the petition is filed. I do not feel, nor do I 

                                                            

4

 At the time of the Matter of Great Wall decision, sixth-preference visas were 

available to aliens capable of performing skilled or unskilled labor of a permanent 

nature “for which a shortage of employable and willing persons exists in the 

United States.” 8 U.S.C. § 1153(a)(6) (1982). 

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believe the Congress intended, that the petitioner, who 

admittedly could not pay the offered wage at the time the 

petition was filed, should subsequently become eligible 

to have the petition approved under a new set of facts 

hinged upon probability and projections, even beyond the 

information presented on appeal. 

Matter of Great Wall, 1977 WL 39236 at *2-3. 

Twelve years after Matter of Great Wall, the United States Court of Appeals 

for the District of Columbia Circuit examined that decision and concurred with the 

BIA’s construction of the INA. See Masonry Masters, Inc. v. Thornburgh, 875 

F.2d 898, 899-90 (D.C. Cir. 1989). The court in Masonry Masters explained that 

requiring a prospective employer to demonstrate a present ability to pay is 

“clearly” within the INS’s authority “because it relates to whether [the] job offer is 

realistic.” Id. The court concluded that the ability-to-pay requirement was 

“rational.” Id.5

In the years since Masonry Masters was decided and the Ability to Pay 

Regulation was adopted, a number of federal courts have deemed the ability-to-pay 

requirement reasonable and have rejected arguments – like those Plaintiffs make 

here – that the Ability to Pay Regulation is ultra vires to the INA. For instance, in 

Rizvi v. Dep’t of Homeland Sec. ex rel. Johnson, --- Fed. App’x---, 2015 WL 

                                                            

5

 The precise issue in Masonry Masters was whether the determination of the 

applicant’s ability to pay should be made by the INS (USCIS’s predecessor) or by 

the DOL. But the court’s statement that the INS “clearly” had the authority to 

make the determination is certainly relevant to whether the requirement that an 

applicant demonstrate an ability to pay is ultra vires to the INA. 

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5711445, at *2 (5th Cir. Sept. 30, 2015), the United States Court of Appeals for the 

Fifth Circuit explained: 

Appellants' final contention is that the regulation that 

requires an employer to demonstrate its ongoing ability 

to pay the prevailing wage is ultra vires of the statute, 

which provides that “[a]ny employer desiring and 

intending to employ ... an alien entitled to classification 

under . . . 1153(b)(3) . . . may file a petition with the 

attorney general for such classification.” The regulation 

in question, 8 C.F.R. § 204.5(g)(2), allegedly 

impermissibly expands on this provision by adding 

requirements of an employer's ability to pay from the 

priority date until the petition is granted and by 

restricting what evidence is probative. 

Assuming arguendo that this issue need not have been 

administratively exhausted, the contention fails. Other 

provisions of the INA, e.g. 8 U.S.C. §§ 

1182(a)(5)(A) (requiring DOL certification, inter 

alia, that an alien's wages will not adversely affect the 

wages of similarly situated U.S. workers), and 1103(a)(3) 

(Secretary of Homeland Security authorized to 

promulgate regulations and perform other acts deemed 

necessary for carrying out his authority), also bear on the 

propriety of the regulation. Viewed in the proper 

context, the challenged regulation serves purposes in 

accord with the statutory duty to grant immigrant status 

only where the interests of American workers will not be 

harmed; showing the employer's ongoing ability to pay 

the prevailing wage is one reasonable way to fulfill this 

goal. 

Likewise, in Woody’s Oasis, the court rejected an ultra vires challenge to the 

Ability to Pay Regulation and held that USCIS’s application of the regulation was 

fully “consistent with its statutory and regulatory authority.” Woody’s Oasis, 2014 

WL 413503, at *3-5. 

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The Court finds Matter of Great Wall and the judicial decisions discussed 

above to be persuasive. As the BIA and federal courts have concluded, a rule 

and/or regulation requiring an employer-applicant to demonstrate a present ability 

to pay the proffered wage is reasonable means of insuring that skilled worker visa 

applications are for legitimate, existing employment opportunities, and the 

requirement is not inconsistent with the INA. Accordingly, the Court rejects 

Plaintiffs’ ultra vires challenge to the Ability to Pay Regulation. 

B. The I-140 Petition’s Denial 

 1. Standard of Review 

The parties’ motions before the Court are styled as summary judgment 

motions. The Sixth Circuit has explained that “the use of summary judgment is 

inappropriate for judicial review of an administrative action under the 

Administrative Procedure Act,” such as the Defendants’ denial of the I-140 

Petition here. Donaldson v. United States, 109 Fed. App’x 37, 39-40 (6th Cir. 

2004); see also Alexander v. Merit Sys. Protection Bd., 165 F.3d 474, 480-81 (6th 

Cir. 1999). Nonetheless, a district court may still “enter judgment on a summary 

judgment motion so long as the court applies the proper standard of review and 

does not consider evidence outside the administrative record.” Woody’s Oasis, 

2014 WL 413503, at *2 (citing Alexander, 165 F.3d at 480-81). 

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 Under the Administrative Procedures Act (the “APA”), a court should set 

aside an agency decision if it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). “Review under 

the APA is deferential and a court must not ‘substitute its judgment for that of the 

agency.’” Taco Especial v. Napolitano, 696 F. Supp. 2d 873, 877 (E.D. Mich. 

2010) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983)). The agency, however, “must examine the relevant data and 

articulate a satisfactory explanation for its action including a rational connection 

between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n, 463 

U.S. at 43 (internal quotations and citation omitted). 

2. Defendants Reasonably Concluded That Econo Inn Failed to 

Demonstrate Its Ability to Pay the Proffered Wage 

USCIS uses “three primary methods” to determine whether an employer can 

pay the proffered wage in an I-140 petition: 

First, an employer can show that he is already employing 

the alien beneficiary at a wage equal to that specified in 

the Form ETA–750. Second, an employer can show that 

its yearly net income exceeds the expected yearly wage 

specified in the Form ETA–750. Finally, an employer 

can show that its net current assets exceed the expected 

yearly wage specified in the Form ETA–750. 

Taco Especial, 696 F. Supp. 2d at 878 (internal citations omitted). And “if an 

employer fails to meet any of the three criteria, the USCIS has the discretion to 

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consider any other evidence provided by the petitioner and may use it to find that 

an employer has the ability to pay the proffered wage.” Id. 

Here, USCIS reasonably determined that Econo Inn failed to establish its 

ability to pay under any of the three “primary methods.” Indeed, it was undisputed 

that Econo Inn was not already employing Patel at the proffered wage at the time 

the Petition was filed, and Plaintiffs ultimately conceded – and admit now – that 

“net income and net current assets as reported on [Econo Inn’s] tax returns did not 

fully cover the proffered wage.” (Aug. 9, 2013, AAO Decision, ECF # 1-2 at 3, Pg. 

ID 17; see also Pls.’ Br., ECF # 18 at 23, Pg. ID 1218.) 

USCIS also reasonably determined that the additional documentation 

submitted by Econo Inn did not establish Econo Inn’s ability to pay Patel the 

proffered wage. For instance, USCIS reasonably rejected Plaintiffs’ argument that 

Econo Inn’s bank statements demonstrated its ability to pay. As USCIS explained, 

those statements “show the amount in an account on a given date, and cannot show 

the sustainable ability to pay a proffered wage.” (Oct. 31, 2012, AAO Decision, 

ECF # 17-4 at 150, Pg. ID 1071.) Likewise, USCIS fairly noted that Plaintiffs 

failed to submit evidence “to demonstrate that the funds reported on [Econo Inn’s] 

bank statements somehow reflect additional available funds that were not reflected 

on its tax returns....” (Id.) Moreover, USCIS reasonably declined to accept Econo 

Inn’s unaudited financial statements and properly deemed irrelevant the assets 

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owned by Econo Inn’s controlling shareholder (rather than by Econo Inn, itself). 

(Id.) 

Finally, USCIS carefully considered the totality of Econo Inn’s 

circumstances and reasonably concluded that those circumstances did not establish 

Econo Inn’s ability to pay: 

USCIS may consider the overall magnitude of the 

petitioner’s business activities in its determination of the 

petitioner’s ability to pay the proffered wage. See Matter 

of Sonegawa, 12 I & N Dec. 612. . . . 

*** 

In the instant case, the petitioner has been in business 

since 1986, and claims to employ eight workers. Its gross 

receipts averaged $432,111 since 2001; the petitioner has 

only shown marginal growth. The petitioner has not 

established historical growth, the occurrence of any 

uncharacteristic business expenditures or losses, the 

petitioner’s reputation within its industry, or whether the 

beneficiary is replacing a former employee or an 

outsourced service. Although counsel claims that the 

petitioner incurred management expenses because the 

beneficiary was not yet working for it prior to 2007, it 

has not been established who performed these duties, 

whether duties were the same as certified on the Form 

ETA 750, or how much the petitioner needed to pay for 

these services. Going on record without supporting 

documentary evidence is not sufficient for purposes of 

meeting the burden of proof in these proceedings. Matter 

of Soffici, 122 I. & N. Dec. 158, 165 (Comm’r 1998) 

(citing Matter of Treasure Craft of California, 14 I. & N. 

Dec. 190 (Reg’l Comm’r 1972)). 

Moreover, the income tax forms indicate that the 

petitioner has paid under $75,000 in wages and salaries 

to its eight employees, which lead us to believe more 

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likely than not, that the petitioner, could not support nine 

employees if only eight employees were paid an average 

combined wages and salaries of $48,457 since 2001. 

Thus, assessing the totality of the circumstances in this 

individual case, it is concluded that the petitioner has not 

established that it had the continuing ability to pay the 

proffered wage. 

(Oct. 31, 2012, AAO Decision, ECF # 17-4 at 151, Pg. ID 1072.) 

Plaintiffs attack USCIS’s conclusion on several grounds, but none establish 

that USICS acted arbitrarily or capriciously. Plaintiffs first argue that USCIS 

failed to consider the totality of Econo Inn’s financial circumstances6

 as required 

under Matter of Sonegawa, 12 I. & N. Dec. 612 (Bd. Immigration App. 1967) 

(reviewing the totality of circumstances in assessing ability to pay). But that is 

demonstrably false. As the excerpt above makes clear, USCIS cited Matter of 

                                                            

6

 Plaintiffs assert that certain USCIS memoranda and manuals – specifically, 

USCIS Memorandum, Determination of Ability to Pay Under 8 C.F.R.§ 

204.5(g)(2) (May 4, 2004), and the USCIS Adjudicator’s Field Manual – 

impermissibly restricted the scope of USCIS’s review of Econo Inn’s finances. 

(See Pls.’ Reply Br., ECF #24 at 4-5, Pg. ID 1330-31.) Plaintiffs complain that the 

memoranda and manuals provide “adjudicators the discretion to reject the very 

evidence that the regulation permits petitioners to submit.” (Id. at 7, Pg. ID 1333.) 

This argument fails for two reasons. First, the Ability to Pay Regulation states that 

USCIS may consider “additional evidence, such as profit/loss statements, bank 

account records, or personnel records” in “appropriate cases.” 8 C.F.R. § 

204.5(g)(2) (emphasis added). The regulation does not require USCIS to consider 

these pieces of evidence. Second (and in any event), USCIS evaluated every single 

document Econo Inn submitted with its I-140 Petition and did consider the totality 

of Econo Inn’s financial circumstances – even when it was not required to do so. 

Thus, the manuals’ guidance had no bearing on USCIS’s rejection of Econo Inn’s 

I-140 Petition in this case. 

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Sonegawa and expressly considered the totality of Econo Inn’s financial 

circumstances. 

Plaintiffs further criticize USCIS for failing to give proper weight to Econo 

Inn’s “substantial backing” from its “sole shareholder.” (Pls.’ Br., ECF # 18 at 24, 

Pg. ID 1219.) But the sole shareholder and the corporation are separate legal 

entities, and Plaintiffs have offered no reason to believe that the shareholder’s 

assets would necessarily be available to satisfy the corporation’s obligations – 

including the payment of Patel’s proffered wage. 

Plaintiffs also complain that USCIS disregarded the analysis of Plaintiffs’ 

accountant who, after “exclud[ing] depreciation and amortization expenses,” 

concluded that Econo Inn did have the ability to pay the proffered wage. (Pls.’ Br., 

ECF #18 at 24, Pg. ID 1219.) But as this Court concluded in Taco Especial, 

USCIS does not act arbitrarily when it insists that depreciation and amortization 

expenses be factored into the ability-to-pay calculus. See Taco Especial, 696 F. 

Supp. 2d at 880-82. 

Next, Plaintiffs assert that USCIS overlooked the fact that Econo Inn “has 

been in business for nearly 30 years, has remained solvent during that time, and 

has always met its financial obligations.” (Pls.’ Br., ECF #18 at 23, Pg. ID 1218.) 

A business’s longevity, however, is not itself an adequate basis for establishing the 

business’s ability to pay a prospective employee’s proffered wage. See Woody’s 

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Oasis, 2014 WL 413503, at *5 (“Plaintiffs merely point to Woody’s Oasis’s 

longevity and recent expansion. However, these factors provide no reason to 

believe that Woody’s Oasis could find the extra money to pay [the employee’s] 

salary”). In any event, USCIS did consider Econo Inn’s business history, but it 

noted that Econo Inn “did not submit evidence to establish its historical growth, the 

occurrence of any uncharacteristic business expenditures or losses, [or] [its] 

reputation within the industry.” (Aug. 9, 2013, AAO Decision, ECF #1-2 at 5, Pg. 

ID 19.) USCIS did not act reasonably when it determined that Econo Inn’s history 

failed to establish its ability to pay Patel’s proffered wage. 

Finally, Plaintiffs argue that USCIS’s focus on Econo Inn’s net income and 

net assets was misplaced because “a profitable company may show no [net] taxable 

income because it transfers its profit into other expenditures, such as salaries” to 

reduce its tax liability. (See Pls.’ Br., ECF #18 at 22, Pg. ID 1217 (citing Constr. 

& Design Co. v. USCIS, 563 F.3d 593, 595-96 (7th Cir. 2009).) But Plaintiffs 

point to no evidence that Econo Inn, in fact, shifted any of its profits into other 

expenditures as a way to reduce it tax liabilities, nor do Plaintiffs identify a specific 

source of funds that would be available to pay Patel’s proffered wage. They have 

thus failed to show error in USCIS’s consideration of net income and net assets. 

See Taco Especial, 696 F. Supp. 2d at 880. (“[T]he employer bears the burden of 

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proof in establishing ability to pay and must show where the extra money would be 

coming from.” (internal quotations and citation omitted)). 

CONCLUSION 

For the reasons stated above, IT IS HEREBY ORDERED that the 

Plaintiffs’ motion for summary judgment (ECF #18) is DENIED and the 

Defendants’ motion for summary judgment (ECF #19) is GRANTED. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: November 9, 2015 

 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on November 9, 2015, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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