I believe the unnamed attorney who lost the case before both the Vermont Service Center and the AAU on the issue of an employer's failure to show the ability to pay the Prevailing Wage on the day the Priority Date is established misses the point of the law. If a Labor Certification and attendant adjustment to permanent residence could all be approved on the day the Labor Certification were filed (wishful thinking), the employer would need to show it could pay the prevailing wage on the day on that very day, because that is the day the Priority Date is established. And that's the law. Notwithstanding that reality rears its ugly head and takes years to process the Labor Certification through adjustment of status, the law remains the same: The employer must prove they can pay the prevailing wage on the date the Priority Date is established. While we immigration lawyers may not like it, that is the law. While the unnamed lawyer may have a practical argument supporting his position, there does not appear to be a persuasive legal argument, because the "bottom line" is not prospective, and unlike theoretical "depreciation" for tax purposes, you either have the nickel, or you don't. Obviously, his employer did not have the nickel. Establishing the prospective intent to replace is something the law does not even want to get into. Simply put, if the money is not there to hire the alien on the day the Priority Date is established, the law requires that that the employer cannot demonstrate they can pay the alien applicant that amount on that day and they have not met their burden under the law, since there is already somebody working in that position (a fact that is set on the date of filing). The law does seem to be rather black and white, but it is clear. It's kind of like being pregnant, you either are or you aren't . . . no mitigating factors for the sake of convenience allowed. The unnamed lawyer must learn that we lawyers are advocates . . . . it is legislators who make the law. He will make no law in this instance, practical as his arguments may be.
David Murray, Esq.
Newport Beach, CA
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