I think this is the article that tanjar is talking about:
2/18/2004: I-140 Petition, "Ability to Pay" Requirement, and USCIS Plan
* Lately, a host of I-140 immigrant petitions have been denied on the issue of petitioning employer's financial ability to pay the proffered wage. The requirement of "financial ability to pay" is derived from the interpretation of the immigration statutues and there is no such specific language in the statute itself.
* In implementing the financial ability to pay requirement, there have been a number of confusions, inconsistencies, and arbitrariness until the so-caled "Yates Memo" was released no too long ago to clarify the standards. Now, the USCIS rule-making agenda reflects that USCIS is planning to amend 8 CFR 204.5(g)(2) to eliminate specific reference to ability to pay and replacing it with the statutory requirement that petitioner establish its bona fides as a U.S. employer through specifically cited initial evidence. This rule provides clarification and focus that reflects the statutory requirement that the petitioning employer establish its bona fides as a U.S. employer and the viability of the proffered job.
* The plan is to enact this regulation in April 2005. The USCIS can change the plan as it often does, but we support this regulatory amendment to come better terms with the statutory language and the legislative intent. Before the legacy INS and the current USCIS started toughening the financial ability to pay requirement, the legacy INS implemented the statute and regulation somewhat liberally and close to the terms of the statutory language. For instance, the reality of the business reflects that the businesses constantly go through "ups and downs" in revenue and income over the years. One cannot judge the viability of a business strictly based on the net income figures of the businesses in a given year. There may be hundreds of thousands of businesses that have survived for years and years, sometimes over 10 years, and are experiencing downturn of the revenue because of the poor economy. It is indeed absurd that these businesses are judged as "not viable" because of couple of years of business slowdowns! We urge the USCIS to amend the regulation as drafted and implement the statutes more close to the language of the statutes.