My compliments on an excellent analysis of the recent Yates/Ohata memos regarding I-140 processing. I would like to add just a few thoughts to those so clearly expressed by Mr. Guevara. First, even the traditional analysis of “ability to pay” makes little sense in today's world of the soft economy. Presume that a relatively small employer files a labor certification for an alien with a proffered wage of $50,000. His before-tax earnings that first year are $60,000. While he badly needs a new electronic widgetmaker, costing close to $60,000, he is forced to forego the machine and to pay Federal Income Taxes on the $60,000. Assuming a net rate of about 25%, he now has only $45,000 left, paying $15,000 in unnecessary taxes. Let us project that it takes three years for the labor certification to be processed, granted and an I-140 filed. The employer's income before taxes remains about the same as the first year, since it grew to absorb the tax expense. This employee, then, appears to have cost the employer an unrecoverable $45,000 before s/he is on stream the first day. Thus the rule defies logic from the viewpoint of a businessman who sorely needs to use his assets to leverage the business forward. As to current ratio, all the employer needs to do to meet a current ratio test is to borrow money for a term of more than a year, which would increase his long-term debt but not enter into a short-term ratio, and deposit the cash (increasing his short-term assets) in his bank account for a couple of days for the year end at which the ratio is derived. It is the employer's option when to pay back the loan. My last comment is general. Of what force are these memos? I regularly fall into the trap of believing them to be that elusive gospel black letter law. Yet, taking a moment to reflect, these are no more valid than the Weinig epistles of long ago. They're nice for convenience, and great when you're on the right side of them, but litigation under the notice provisions of the APA or under a claim of discretionary abuse is often the most valid response. It is only the money and time values that stays my hand. We all wish we had the resources to litigate for a client who can't afford that route, and who can't wait for the results anyway. Sadly that cannot happen often. But, perhaps Mr. Guevara's article has clarified some other alternatives for us. Thank you, Romulo.
Stephen B. Horton, Esq.
New Milford, CT
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