In a decision released April 23, 2009, the US Court of Appeals for the Seventh Circuit questioned the USCIS standards on the issue of the ability to pay.  The Court stated, ” We were thrown by the government’s brief”. The Court stated that the position of the USCIS “makes no sense” and was even renounced by the government’s own lawyer during oral arguments.  The Court pointed out that the USCIS reliance on net income and net current assets misses the distinction between principles of accounting and cash flow.  The Court stated that, ” the Department of Homeland Security must not take too static a view of a business firm’s decision to purchase an additional input, whether of capital or labor.”  Although the outcome in this case, was ultimately a denial of the petition, the discussion by the Court of the proper ability to pay standards was enlightening.

Of interest to start-up staffing companies with client contracts in place was the Courts favorable references to Matter of Sonegawa and its progeny.  This type of reasonable and rational decision from a Federal Court, should give businesses that have been aggrieved by aribtrary USCIS decisions, some encouragement in pursuing litigation against bad decisions. Although the time to achieve relief may be lengthy, relief can be achieved and more companies must be willing to litigate against bad USCIS decisions or else the flood of bad decisions based upon bad policy will continue. When enough Federal Court decisions smack around the USCIS, it is just possible that USCIS HQ in Washington will take note and reign in the out of control Service Centers.

 Please click here for a PDF copy of the decision: Construction & Design v. USCIS, Decision No. 08-2461 (7th Cir Ct. App)