Jurisdiction over APA action challenging denial of I-140

Taco Especial v. Napolitano, __ F. Supp. 2d __ (E.D. Mich. Mar. 15, 2010).

The District Court exercised jurisdiction over the company's APA action challenging the denial of its I-140 petition.  The issue was whether the company had the ability to pay the proffered wage to the beneficiary.

On the negative side, the court agreed with the AAO that depreciation should not be added back to net income in determining the ability to pay.

On the positive side, the court agreed with the flexible approach endorsed by the Seventh Circuit in Construction & Design Co. v. USCIS, 563 F.3d 593 (7th Cir. 2009).

In the end, the court upheld the AAO's decision, finding that it was not arbitrary or capricious and that the AAO considered the evidence and applied Matter of Sonegawa.