     Case: 14-20569      Document: 00513213385         Page: 1    Date Filed: 09/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                      No. 14-20569                         September 30, 2015
                                                                               Lyle W. Cayce
SYED RIZVI; SHAHEEN FATIMA; AMBER FATIMA;                                           Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 14-20569
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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                                  No. 14-20569
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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                                No. 14-20569
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. Orellana-
Monson v. Holder, 685 F.3d 511, at 517 (5th Cir. 2012).
      The judgment of the district court is AFFIRMED.




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