USCIS HEADQUARTERS “CLARIFIES” RECENT “RFE” AND “ABILITY TO PAY” MEMOS- Part 2
by Michael J. Gurfinkel, Esq.

Recently, I wrote about two new memos from the Headquarters of the United States Citizenship and Immigration Service (USCIS), dealing with requests for evidence (RFEs) and an employer’s “ability to pay” the wage in labor certification cases. 

These memos created a lot of concern among immigrants because they seemed to have authorized officers\adjudicators to deny cases outright, such that people would literally have only “one chance” to prove eligibility, and if it was not done right the first time, the case would be denied.

However, during the annual conference of the American Immigration Lawyers Association (AILA) held in Philadelphia, Mr. William Yates, the Associate Director for Operations of the USCIS, spoke on a variety of topics, including the RFE and the ability to pay memos. (It was Mr. Yates who wrote those memos).  What he had to say in “clarifying” the purposes and intent of those memos was certainly encouraging.  In a previous article, I wrote about Mr. Yates’ clarification of the RFE memo.  In this article, I will discuss his clarification of the “ability to pay” memo.

Ability to pay memo:

In his ability to pay memo Mr. Yates had instructed officers/adjudicators on how to analyze an employer’s “ability to pay” in employment-based cases. Per that memo, employers are required to submit federal tax returns, annual reports, or audited financial statements.  However, if the employer’s initial submission of evidence does not establish the employer’s ability to pay, the adjudicator was authorized to deny the case outright, without need of an RFE, asking for additional financial information. 

However, at the AILA conference, Mr. Yates clarified how the employer’s ability to pay should be determined.  According to Mr. Yates, it appears that officers/adjudicators have misinterpreted the underlying purpose behind the requirement of an employer demonstrating the ability to pay.  As stated by Mr. Yates, “the statutory requirement [of establishing ability to pay] is to establish that it’s a bonafide company. Ability to pay was actually meant, when it was first put into the regulations, to be a tool that officers apply, not a sword, if you will. So, if you have a company that’s been in business for years, there really is no question about the ability to pay or the bonafides of the company.”

Recently, there have been many denials on ability to pay, where officers engaged in highly-technical analyses of an employer’s net and gross income, assets, liabilities, etc., making fractional computations, and sometimes determining that an employer grossing millions of dollars, with hundreds of employees, and hundreds of thousands of dollars in payroll, just missed establishing ability to pay by only $2,000-$3,000, per year, and denying the case. 

Mr. Yates’ clarification seems to indicate this type of hyper-technical analysis is going way over board.  The thing that needs to be established is merely if it is a bona fide company (as opposed to a bogus company existing only “on paper”).

We hope that officers/adjudicators will now return things to “normal” in processing their cases, and that despite the apparent language of the RFE memo, and the ability to pay memo, Mr. Yates’ statements provide some much needed clarifications and hope for aliens seeking legal status in the U.S.   

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