ceeds the prevailing wage; when its net current assets exceed the prevailing wage; or where “the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage.” (Emphasis added).Net income is considered the company’s taxable income as reported on its federal income tax returns. Net current assets can be calculated by subtracting the total current assets minus total liabilities as reported in Schedule L of the petitioner’s federal income tax return. According to the Yates memo, an employer may establish ability to pay by showing at least one of these figures exceeds the proffered wage. Alternatively, the memo states that if the petitioner is already paying the foreign national the prevailing wage, the petitioner may submit evidence this is the case. This would typically consist of W-2 year-end wage statements for all relevant years.Precedent Decision on Ability to PayIt should also be noted that in a precedent decision, Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm’r 1967), the Regional Commissioner applied a totality of the circumstances test for ability to pay rather than applying a rigid reading of 8 C.F.R. §204.5(g)(2). Specifically, Sonegawa states:The fact that petitioner was able to show only a net profit of $280 for the calendar year of 1966 does not in itself preclude the beneficiary from establishing that she will be able to meet the conditions of the certification in the "Job Offer". After careful consideration of all the above circumstances, we find that the petitioner’s expectations of continued increase in business and increasing profits are reasonable expectations and that it has been established that she has the ability to pay the beneficiary the stipulated wages and meet the conditions of the certification.This holding leaves open the possibility that if a petitioner has one or two bad years but overall has maintained ability to pay the proffered wage, the petitioner may still establish it has the ability to pay.New Guidance from Citize