The Vermont SC denied an employment based case on the basis that the employer could not show sufficient income in the year of filing to pay the wage of the new worker. I argued to the AAU that the alien worker would replace the another worker and that the current worker's wages had to added to the employer's net income when considering whether or not the employer had the ability to pay the wage in the year of filing. The decision denying the appeal repeats my argument but then states that sufficient income was not shown. I cannot tell if the AAU simply rejects the inclusion of the replace worker's wage or concludes that even with the replaced worker's wage it is not sufficient. It appears to be the former. My reading of the decision is that you cannot add the replaced worker's wage to the company's bottom line in order to show ability to pay the wage. This makes no sense. The INS permits you to add depreciation back to the bottom line. Why not add back the replaced worker's wage which you would be paying to the alien if he or she were hired the day you filed the application? It is possible that the AAU found that even when you add back the replaced worker's wage, my client's bottom line was still not sufficient. It is just not so stated in the decision. (For the AAU Decision, please click here.)
Attorney's Name Withheld By Request
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