OPINION AND ORDER (1) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (ECF #18) AND (2) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF #19)

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

In 2001, Plaintiff Ketankumar Patel ("Patel"), a citizen of India, began working for Plaintiff Econo Inn Corp. ("Econo Inn," collectively with Patel, "Plaintiffs") as a motel manager. In 2007, Econo Inn filed an I-140 Immigration Petition for an Alien Worker on Patel's behalf (the "I-140 Petition"). The I-140 Petition, if granted, would have allowed Patel to obtain an employment visa and, eventually, to apply for lawful permanent residency in the United States.

On February 27, 2009, the United States Citizenship and Immigration Service ("USCIS") denied the I-140 Petition. Plaintiffs appealed the denial to the USCIS Administrative Appeals Office (the "AAO"), which ultimately affirmed the denial on August 9, 2013. Plaintiffs thereafter filed this action challenging the denial. (See Complaint, ECF #1.) Plaintiffs named as Defendants Ron Rosenberg, Chief of the AAO, Leon Rodriguez, Director of USCIS, and Jeh Johnson, the Secretary of Homeland Security (collectively "Defendants"). (See id.)

The parties have now filed cross-motions for summary judgment. (See ECF ##18, 19.) For the reasons that follow, the Court will GRANT Defendants' motion and DENY Plaintiffs' motion.

RELEVANT FACTUAL BACKGROUND, STATUTORY AND REGULATORY FRAMEWORK, AND PROCEDURAL HISTORY

Econo Inn is a Flint, Michigan, company that opened a motel of the same name in 1986. (See Administrative Record, ECF #17-1 at 5, Pg. ID 98.) Patel is a 43-year-old native and citizen of India who entered the United States on July 20, 1999. (See id. at 4, Pg. ID 97.) Patel is not a lawful permanent resident of this country. (See id.) Patel began working for Econo Inn shortly after his arrival in the United States.

In 2001, Plaintiffs began the process of seeking a skilled worker employment visa for Patel pursuant to the Immigration and Nationality Act (, 8 U.S.C. § 1101 et seq. (the "INA"). In Woody's Oasis v. Rosenberg, No. 13-cv-367, 2014 WL 413503 (E.D.Mich. Feb. 4, 2014), the United States District Court for the Western District of Michigan provided the following helpful overview of skilled worker visa application process under the INA:

Woody's Oasis, 2014 WL 413503 at *2-3.

On April 30, 2001, Econo Inn filed an Application for Alien Employment Certification (the "Certification Application") with the Department of Labor (the "DOL") on Patel's behalf. (See Admin. R., ECF #17-1 at 8, Pg. ID 101.) Econo Inn sought to hire Patel as the full-time manager for its motel. (See id.) The DOL approved the Certification Application and set the "proffered wage" for Patel (that is, the Wage Econo Inn would be required to pay Patel) at $43,800 per year. (See Oct. 31, 2012, AAO Decision, ECF #17-4 at 147, Pg. ID 1068.)

Following the DOL's certification, Econo Inn filed the I-140 Petition with USCIS seeking to classify Patel as an alien beneficiary eligible for an immigration visa based on his employment as the motel's manager. (See Admin. R., ECF #17-1 at 4, Pg. ID 97.) Patel also filed an I-485 Application to Adjust Status in which he sought to change his legal status from an undocumented immigrant to a lawful permanent resident pending the approval of the I-140 Petition. (See Admin. R. ECF #17-4 at 247, Pg. ID 1168.)

On December 26, 2008, USCIS notified Econo Inn that it had not provided sufficient evidence of its ability to pay Patel's proffered $43,800 wage, as Econo Inn was specifically required to do under an applicable federal regulation, 8 C.F.R. § 204.5(g)(2) (the "Ability to Pay Regulation"). (See Admin. R., ECF #17-4 at 138, Pg. ID 1059.) USCIS requested that Econo Inn supplement the I-140 Petition with, among other things, audited financial statements, business tax returns, shareholder information, and Patel's Internal Revenue Service ("IRS") W-2 forms dating back to 2001. (See Admin. R., ECF #17-1 at 66-67, Pg. ID 159-60) Econo Inn then supplemented the I-140 Petition with (1) Patel's 2007 and 2008 W-2 forms (see id. at 73-75, Pg. ID 166-67); (2) Patel's June 2008 payroll vouchers (see id. at 77-79, Pg. ID 169-71); (3) a statement from Econo Inn's certified public accountant (see id. at 80-82, Pg. ID 172-74); (4) Econo Inn's operating cash flow statements and monthly bank statements from 2001-2007 (see Admin R., ECF #17-1 at 84 — ECF #17-2 at 110, Pg. ID 182-479); (5) Econo Inn's complete tax returns, including shareholder filings from 2001-2007 (see Admin R., ECF #17-2 at 112-73; Pg. ID 481-542); and (6) the personal tax returns for Econo Inn's sole shareholder, Dilip Patel. (See Admin R., ECF ##17-2-17-4, Pg. ID 550-1012.)

USCIS reviewed Econo Inn's supplemental documents and denied the I-140 Petition on the basis that Econo Inn failed to establish its ability to pay Patel's proffered wage. (See Admin. R., ECF #17-4 at 139, Pg. ID 1060.) USCIS concluded that "after a complete review of the record, the evidence does not establish that the petitioner had the ability to pay the offered wage when the priority date was established (April 30, 2001), or that it continued to have such ability through to the present." (Id.)

On March 31, 2009, Econo Inn appealed USCIS's decision to the AAO, and the AAO upheld the I-140 Petition's denial on October 31, 2012. (See Oct. 31, 2012, AAO Decision, ECF #17-4 at 151, Pg. ID 1072.) Econo Inn then filed a motion to reopen and a motion to reconsider with the AAO (the "Motion for Reconsideration"). (See Aug. 9, 2013, AAO Decision, ECF #1-2 at 5, Pg. ID 19.) On August 9, 2013, the AAO ruled on the Motion for Reconsideration and affirmed the portion of its earlier decision in which it had concluded that Econo Inn failed to establish its ability to pay Patel's proffered wage.1 (See id.)

On March 16, 2015, Plaintiffs filed this action against the Defendants. (See Compl., ECF #1.) Plaintiffs ask this Court to reverse the AAO's decision affirming the denial of the I-140 Petition.

The parties have now filed cross-motions for summary judgment. (See ECF ##18, 19.) Pursuant to Local Rule 7.1(f)(2), the Court concludes that oral argument would not aid its decision on the summary judgment motions, and for the reasons stated below, it grants Defendants' motion for summary judgment and denies Plaintiffs' motion.

ANALYSIS

Plaintiffs raise two main arguments in their motion for summary judgment. First, Plaintiffs argue that the Ability to Pay Regulation is ultra vires to the INA and that the Defendants therefore may not deny the I-140 Petition on the ground that Econo Inn failed to satisfy that regulation. (See Pls.' Br., ECF #18 at 9-10, Pg. ID 1204-05.) Second, Plaintiffs argue that even if the Ability to Pay Regulation is valid, the Defendants arbitrarily and capriciously concluded that Econo Inn lacked the ability to pay Patel's proffered wage. (See id.) Defendants counter that the proffered wage requirement is not ultra vires to the INA and that they reasonably determined that Econo Inn had failed to demonstrate its ability to pay the proffered wage. (See Defs.' Br., ECF #19 at 13, 20, Pg. ID 1274, 1281.)

A. The Ultra Vires Challenge to the Ability to Pay Regulation

1. Standard of Review

"In determining whether an agency regulation is ultra vires, [a federal court] appl[ies] the two step Chevron2 analysis." Garfias-Rodriguez v. Holder, 702 F.3d 504, 525 (9th Cir.2012) (en banc); see also Hachem v. Holder, 656 F.3d 430, 438 (6th Cir.2011) (applying Chevron test to determine "whether or not the regulation conflicts with the enabling statute"). Under Chevron's first step, a federal court "first look[s] at the statute upon which the regulation is based." Hachem, 656 F.3d at 438. If the court determines that "`Congress has directly spoken to the precise question at issue,' then that is the end of the inquiry." Id. (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). "The unambiguously expressed intent to Congress controls." Id. However, "if the statute is silent or ambiguous with respect to the specific issue," then a federal court must proceed to the second step of the Chevron analysis and determine whether the agency has provided a "permissible construction of the statute." Id. (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). In conducting the second step of this analysis, a reviewing court "may not substitute its own construction [of the statute] for the reasonable interpretation of an agency." Hosp. Corp. of America, 348 F.3d 136, 141 (6th Cir.2003) (quoting Peoples Fed. Sav. & Loan Ass'n of Sidney v. Comm'r Internal Revenue, 948 F.2d 289, 300 (6th Cir. 1991)).

2. The Ability to Pay Regulation Is Reasonable Under Chevron and Is Not Ultra Vires to the INA

Under Chevron, the first question with respect to Plaintiffs' ultra vires challenge to the Ability to Pay Regulation is: does the INA expressly or unambiguously require an employer seeking an employment visa on behalf of an alien beneficiary to demonstrate its ability to pay that employee's proffered wage? It does not. Thus, this Court must proceed to Chevron's second step to determine whether the Ability to Pay Regulation rests upon a reasonable construction of the INA.

The Ability to Pay Regulation provides as follows:

8 C.F.R. § 204.5(g)(2).

The Ability to Pay Regulation has its origin in the 1977 Board of Immigration Appeals' (the "BIA") ruling in Matter of Great Wall, 16 I. & N. Dec. 142, 1977 WL 39236 (Bd. Immigration App. Mar. 16, 1977).3 In Matter of Great Wall, the BIA upheld the denial of a petition for a skilled worker visa on the ground that the employer-application failed to demonstrate the employer's ability to pay the proffered wage. See id. The BIA explained that requiring a demonstration of present ability to pay was fully consistent with the relevant provisions of the INA:

Matter of Great Wall, 1977 WL 39236 at *2-3.

Twelve years after Matter of Great Wall, the United States Court of Appeals for the District of Columbia Circuit examined that decision and concurred with the BIA's construction of the INA. See Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898, 899-90 (D.C.Cir.1989). The court in Masonry Masters explained that requiring a prospective employer to demonstrate a present ability to pay is "clearly" within the INS's authority "because it relates to whether [the] job offer is realistic." Id. The court concluded that the ability-to-pay requirement was "rational." Id.5

In the years since Masonry Masters was decided and the Ability to Pay Regulation was adopted, a number of federal courts have deemed the ability-to-pay requirement reasonable and have rejected arguments — like those Plaintiffs make here — that the Ability to Pay Regulation is ultra vires to the INA. For instance, in Rizvi v. Dep't of Homeland Sec. ex rel. Johnson, 2015 WL 5711445, at *2 (5th Cir. Sept. 30, 2015), the United States Court of Appeals for the Fifth Circuit explained:

Likewise, in Woody's Oasis, the court rejected an ultra vires challenge to the Ability to Pay Regulation and held that USCIS's application of the regulation was fully "consistent with its statutory and regulatory authority." Woody's Oasis, 2014 WL 413503, at *3-5.

The Court finds Matter of Great Wall and the judicial decisions discussed above to be persuasive. As the BIA and federal courts have concluded, a rule and/or regulation requiring an employer-applicant to demonstrate a present ability to pay the proffered wage is reasonable means of insuring that skilled worker visa applications are for legitimate, existing employment opportunities, and the requirement is not inconsistent with the INA. Accordingly, the Court rejects Plaintiffs' ultra vires challenge to the Ability to Pay Regulation.

B. The I-140 Petition's Denial

1. Standard of Review

The parties' motions before the Court are styled as summary judgment motions. The Sixth Circuit has explained that "the use of summary judgment is inappropriate for judicial review of an administrative action under the Administrative Procedure Act," such as the Defendants' denial of the I-140 Petition here. Donaldson v. United States, 109 Fed. Appx. 37, 39-40 (6th Cir.2004); see also Alexander v. Merit Sys. Protection Bd., 165 F.3d 474, 480-81 (6th Cir.1999). Nonetheless, a district court may still "enter judgment on a summary judgment motion so long as the court applies the proper standard of review and does not consider evidence outside the administrative record." Woody's Oasis, 2014 WL 413503, at *2 (citing Alexander, 165 F.3d at 480-81).

Under the Administrative Procedures Act (the "APA"), a court should set aside an agency decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). "Review under the APA is deferential and a court must not `substitute its judgment for that of the agency.'" Taco Especial v. Napolitano, 696 F.Supp.2d 873, 877 (E.D.Mich.2010) (quoting Motor Vehicle Mfr's. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The agency, however, "must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856 (internal quotations and citation omitted).

2. Defendants Reasonably Concluded That Econo Inn Failed to Demonstrate Its Ability to Pay the Proffered Wage

USCIS uses "three primary methods" to determine whether an employer can pay the proffered wage in an I-140 petition:

Taco Especial, 696 F.Supp.2d at 878 (internal citations omitted). And "if an employer fails to meet any of the three criteria, the USCIS has the discretion to consider any other evidence provided by the petitioner and may use it to find that an employer has the ability to pay the proffered wage." Id.

Here, USCIS reasonably determined that Econo Inn failed to establish its ability to pay under any of the three "primary methods." Indeed, it was undisputed that Econo Inn was not already employing Patel at the proffered wage at the time the Petition was filed, and Plaintiffs ultimately conceded — and admit now — that "net income and net current assets as reported on [Econo Inn's] tax returns did not fully cover the proffered wage." (Aug. 9, 2013, AAO Decision, ECF #1-2 at 3, Pg. ID 17; see also Pls.' Br., ECF #18 at 23, Pg. ID 1218.)

USCIS also reasonably determined that the additional documentation submitted by Econo Inn did not establish Econo Inn's ability to pay Patel the proffered wage. For instance, USCIS reasonably rejected Plaintiffs' argument that Econo Inn's bank statements demonstrated its ability to pay. As USCIS explained, those statements "show the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage." (Oct. 31, 2012, AAO Decision, ECF #17-4 at 150, Pg. ID 1071.) Likewise, USCIS fairly noted that Plaintiffs failed to submit evidence "to demonstrate that the funds reported on [Econo Inn's] bank statements somehow reflect additional available funds that were not reflected on its tax returns...." (Id.) Moreover, USCIS reasonably declined to accept Econo Inn's unaudited financial statements and properly deemed irrelevant the assets owned by Econo Inn's controlling shareholder (rather than by Econo Inn, itself). (Id.)

Finally, USCIS carefully considered the totality of Econo Inn's circumstances and reasonably concluded that those circumstances did not establish Econo Inn's ability to pay:

(Oct. 31, 2012, AAO Decision, ECF #17-4 at 151, Pg. ID 1072.)

Plaintiffs attack USCIS's conclusion on several grounds, but none establish that USICS acted arbitrarily or capriciously. Plaintiffs first argue that USCIS failed to consider the totality of Econo Inn's financial circumstances6 as required under Matter of Sonegawa, 12 I. & N. Dec. 612 (Bd. Immigration App. 1967) (reviewing the totality of circumstances in assessing ability to pay). But that is demonstrably false. As the excerpt above makes clear, USCIS cited Matter of Sonegawa and expressly considered the totality of Econo Inn's financial circumstances.

Plaintiffs further criticize USCIS for failing to give proper weight to Econo Inn's "substantial backing" from its "sole shareholder." (Pls.' Br., ECF #18 at 24, Pg. ID 1219.) But the sole shareholder and the corporation are separate legal entities, and Plaintiffs have offered no reason to believe that the shareholder's assets would necessarily be available to satisfy the corporation's obligations — including the payment of Patel's proffered wage.

Plaintiffs also complain that USCIS disregarded the analysis of Plaintiffs' accountant who, after "exclud[ing] depreciation and amortization expenses," concluded that Econo Inn did have the ability to pay the proffered wage. (Pls.' Br., ECF #18 at 24, Pg. ID 1219.) But as this Court concluded in Taco Especial, USCIS does not act arbitrarily when it insists that depreciation and amortization expenses be factored into the ability-to-pay calculus. See Taco Especial, 696 F.Supp.2d at 880-82.

Next, Plaintiffs assert that USCIS overlooked the fact that Econo Inn "has been in business for nearly 30 years, has remained solvent during that time, and has always met its financial obligations." (Pls.' Br., ECF #18 at 23, Pg. ID 1218.) A business's longevity, however, is not itself an adequate basis for establishing the business's ability to pay a prospective employee's proffered wage. See Woody's Oasis, 2014 WL 413503, at *5 ("Plaintiffs merely point to Woody's Oasis's longevity and recent expansion. However, these factors provide no reason to believe that Woody's Oasis could find the extra money to pay [the employee's] salary"). In any event, USCIS did consider Econo Inn's business history, but it noted that Econo Inn "did not submit evidence to establish its historical growth, the occurrence of any uncharacteristic business expenditures or losses, [or] [its] reputation within the industry." (Aug. 9, 2013, AAO Decision, ECF #1-2 at 5, Pg. ID 19.) USCIS did not act reasonably when it determined that Econo Inn's history failed to establish its ability to pay Patel's proffered wage.

Finally, Plaintiffs argue that USCIS's focus on Econo Inn's net income and net assets was misplaced because "a profitable company may show no [net] taxable income because it transfers its profit into other expenditures, such as salaries" to reduce its tax liability. (See Pls.' Br., ECF #18 at 22, Pg. ID 1217 (citing Constr. & Design Co. v. USCIS, 563 F.3d 593, 595-96 (7th Cir.2009).) But Plaintiffs point to no evidence that Econo Inn, in fact, shifted any of its profits into other expenditures as a way to reduce it tax liabilities, nor do Plaintiffs identify a specific source of funds that would be available to pay Patel's proffered wage. They have thus failed to show error in USCIS's consideration of net income and net assets. See Taco Especial, 696 F.Supp.2d at 880. ("[T]he employer bears the burden of proof in establishing ability to pay and must show where the extra money would be coming from." (internal quotations and citation omitted)).

CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that the Plaintiffs' motion for summary judgment (ECF #18) is DENIED and the Defendants' motion for summary judgment (ECF #19) is GRANTED.