IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20569

SYED RIZVI; SHAHEEN FATIMA; AMBER FATIMA; 

ADVANCED MEDICAL AUTOMATION SYSTEMS, INCORPORATED, 

 Plaintiffs - Appellants

v.

DEPARTMENT OF HOMELAND SECURITY, through Its Secretary Jeh 

Johnson; UNITED STATES OF AMERICA, through the Attorney General Eric 

H. Holder Jr.; UNITED STATES CITIZENSHIP & IMMIGRATION 

SERVICES, through Its Director Leon Rodriguez, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CV-3362

Before STEWART, Chief Judge and JONES and GRAVES, Circuit Judges.

PER CURIAM:*

In this appeal from the district court’s upholding an adverse agency 

determination on an I-140 immigrant visa petition, the immigrant’s employer, 

Advanced Medical Automation Systems (“AMAS”), and the employee Syed 

Rizvi and his family raise three contentions. First, they assert that the agency 

abused its discretion by failing to consider relevant evidence. Second, they 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 30, 2015

Lyle W. Cayce

Clerk

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No. 14-20569

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assert that the regulation requiring the employer to consistently maintain the 

ability to pay the “prevailing wage” to the immigrant, 8 C.F.R. § 204.5(g)(2), is 

ultra vires. Third, they assert that the district court erred in denying standing 

to Rizvi and his family. We find no reversible error of fact or law and affirm. 

The district court’s thorough opinion addressed the legal background and 

facts at some length, and our conclusions are additionally informed by the 

briefing, pertinent portions of the record, and the oral argument. Appellants’

primary contentions can be readily addressed.1 

Appellants argue that the USCIS, acting through its Administrative 

Appeals Office (“AAO”) acted arbitrarily and unreasonably when it found 

AMAS did not have the ability to pay Rizvi the proffered wage.2 They contend 

in part that the agency ignored its internal procedures by failing properly to 

apply the “Yates memorandum,” which directed personnel to “make a positive 

ability to pay determination . . . .[when] the record contains credible verifiable 

evidence that the petitioner not only is employing the beneficiary but also has 

paid or is currently paying the proffered wage.” (Yates was USCIS’s Associate 

Director of Operations at one time.) We assume arguendo that the Yates 

memo, contrary to its express language, could furnish legal support for 

Appellants’ position. Under the Appellants’ interpretation, if an employer pays 

the proffered wage in one of ten years, the Yates memo requires a positive 

ability to pay determination regardless of how long the visa application is 

 

1 It is unnecessary to opine on whether the district court erred in its standing 

determination, because the ability of AMAS to prosecute this case resolves the issue. Clinton 

v. City of New York, 524 U.S. 417,431 n.19 (1998). It is also unnecessary to address other 

issues raised by Appellants.

2 To the extent Appellants now contend that the agency imposed on them an improper 

burden of proof, amounting to beyond a reasonable doubt, their contention is waived because 

it was never addressed to the trial court. In any event, the AAO decision plainly decides that 

the petitioner failed to meet its burden by a preponderance of the evidence to show that it 

had the continuing ability to pay the prevailing wage beginning on the priority date.

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pending. This reading is overly broad, as the memorandum speaks to the 

determination required for an individual year, i.e. the year in which the 

proffered wage was paid. Based on the narrower but more reasonable reading, 

which the agency has consistently followed, AMAS paid Rizvi a prevailing 

wage from 2008-2011 but not from 2003-2007.

Moving to the determination that AMAS did not have the consistent 

ability to pay Rizvi, Appellants take issue here, as they did in the trial court, 

with the agency’s consideration of and findings based upon virtually all the 

evidence. In particular, they assert that the agency did not consider AMAS’s 

bank statements, while its reliance on tax returns, net income and net current 

assets gave an incomplete picture of the company’s ability to pay. They do not 

assert that the agency was wrong in calculating an inability to pay by 

comparing AMAS’s annual net income and net assets with the necessary 

prevailing wage. Moreover, the bank statements do not make up for the 

shortfalls because they are mere snapshots of cash available on a given date 

rather than a depiction of ongoing assets. The bank statements were also 

incomplete. Finally, the Appellants did not assert that the bank statements 

show additional money that was unaccounted for in AMAS’s tax returns. The 

agency cited these concerns when it decided that the bank statements were not 

probative. The agency did consider the bank statements and explained why it 

did not find them probative. Like the district court, we cannot conclude that 

its decision was arbitrary, capricious or irrational.

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 

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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. The regulation is 

neither arbitrary and capricious nor manifestly contrary to statute. OrellanaMonson v. Holder, 685 F.3d 511, at 517 (5th Cir. 2012). 

The judgment of the district court is AFFIRMED.

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