The Petitioner, an assets and commercial property management company, seeks to employ the Beneficiary as a graphic designer. The company requests her classification under the employmentbased, second-preference (EB-2) immigrant visa category as a member of the professions holding an "advanced degree." See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b )(2)(A). Businesses may sponsor aliens for U.S. permanent residence in this category to work in jobs that require at least master's degrees or their equivalents. See 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree").
After first granting the filing, Service Center Operations (SCOPS) revoked the petition's approval. SCOPS concluded that the Petitioner did not demonstrate its required intent to employ the Beneficiary in the offered job on a full-time basis or its ability to pay the job's proffered wage. On appeal, the company contends that SCOPS erred by faulting the Beneficiary for not working full-time in the job for the Petitioner before she obtained lawful permanent residence and by disregarding the company's net current assets.
In these revocation proceedings, the Petitioner continues to bear the burden of demonstrating eligibility for the requested benefit by a preponderance of the evidence. Matter ofHo, 19 I&N Dec. 582, 589 (BIA 1988) (citation omitted). Exercising de novo appellate review, see Matter ofChristo 's, Inc. , 26 l&N Dec. 537, 537 n.2 (AAO 2015), we conclude that the record does not support SCOPS' revocation grounds. We will therefore withdraw the decision and remand the matter for entry of a new decision consistent with the following analysis.
Law
Immigration as an advanced degree professional generally follows a three-step process. First, a prospective employer must obtain certification from the U.S. Department of Labor (DOL) that: there are insufficient U.S. workers able, willing, qualified, and available for an offered job; and an alien's employment in the job would not harm wages or working conditions of U.S. workers with similar jobs. See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D).
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Among other things, USCIS determines whether an alien beneficiary meets the requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(k)(3).
Finally, if USCIS approves a petition, a beneficiary may apply for an immigrant visa abroad or, if eligible, "adjustment of status" in the United States. See section 245 of the Act, 8 U.S.C. § 1255. "[ A ]t any time" before a beneficiary obtains U.S. permanent residence, USCIS may revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by a record, a petition's erroneous approval may justify its revocation. Matter ofHo, 19 I&N Dec. at 590. USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the unexplained and unrebutted evidence at the time of the NOIR's issuance would have warranted the petition's denial. Herrera v. USCIS, 571 F.3d 881,886 (9th Cir. 2009); Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). USCIS properly revokes a petition's approval ifa petitioner does not timely respond to a NOIR or if the NOIR response does not rebut or resolve the stated revocation grounds. Matter ofEstime, 19 I&N Dec. at 451-52.
Analysis
A. Intent to Employ in the Offered Job
An employer may file an immigrant visa petition if the business is "desiring and intending to employ [an alien] within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. See Matter ofIzdebska, 12 I&N Dec. 54, 55 (Reg'! Comm'r 1966) (affirming a petition's denial where, contrary to the terms of an accompanying labor certification, a petitioner did not intend to employ a domestic worker in a full-time, live-in capacity).
On the Petitioner's labor certification and Form I-140, Immigrant Petition for Alien Workers, the company attested to its intent to employ the Beneficiary full-time as a graphic designer. The labor certification states that the job requires at least a master's degree and has a proffered wage of $54,142 a year. SCOPS approved the petition in July 2017, a week after its filing.
In July 2025, the Beneficiary had not yet obtained lawful permanent residence, and SCOPS issued a NOIR, alleging, in part, that the Petitioner did not demonstrate its intent to employ her in the offered full-time job. SCOPS noted that USCIS officers had visited the Petitioner's location in 2019, discovering that the company does business from a private home and employed the Beneficiary parttime in the offered job for less than the annual proffered wage. The NOIR stated that the information learned at the site visit "calls into question the bona fides of the job offered."
The record does not support the NOIR's issuance for good and sufficient cause. SCOPS found that, contrary to the job requirements stated on the labor certification, the Petitioner employed the Beneficiary as a graphic designer on a part-time basis and paid her less than $54,142 a year. But, as p. 3 the company argues on appeal, it need not employ her in the offered job unless and until she obtains lawful permanent resident status. See Matter ofRajah, 25 I&N Dec. 127, 132 (BIA 2009) ("An alien is not required to have been employed by the certified employer [in the offered job] prior to adjustment of status."); see also Matter ofCardoso, 13 I&N Dec. 228,230 (BIA 1969) (stating that a beneficiary who never worked for his petitioning employer nevertheless gained lawful U.S. admission as a permanent resident where he intended to work for the petitioner in the offered job at the time of his entry). The Petitioner's job offer is an offer offuture employment. Thus, the Petitioner's employment of the Beneficiary, before she obtains U.S. permanent residence, on terms other than those stated in the labor certification does not demonstrate the company's lack of intent to employ her in the offered job once she receives a "green card." See Matter ofEstime, 19 I&N Dec. at 452 ("Where a notice of intention to revoke is based on an unsupported statement or unstated presumption, ... revocation of the visa petition cannot be sustained.") The NOIR did not otherwise indicate that the Petitioner did not intend to employ the Beneficiary in the offered job if she obtained U.S. permanent residence. Also, the NOIR did not inform the Petitioner why its employment of the Beneficiary at a private home cast doubt on its intent to employ her in the offered job. See 8 C.F.R. § 205.2(b) (requiring USCTS to give a petitioner an opportunity to offer evidence "in opposition to the grounds alleged for revocation of the approval").
USCTS records include additional information that the NOTR omitted. The records show that, in 2021, about two years after Agency officers visited the Petitioner's site, a company official told another USCTS officer that the company continued to employ the Beneficiary at its site part-time at a monthly wage rate of$1,440, or $17,280 a year. The official said that "he did not anticipate any changes in the Beneficiary's employment," suggesting that the company did not intend to employ her in the offered job on a full-time basis once she obtained U.S. permanent resident status. Days later, however, the official sent a "follow-up email" indicating that the company would employ her full-time if she obtained a green card. The official reportedly did not specify whether, once she got a green card, the company would also pay her the annual proffered wage of $54,142.
SCOPS did not issue the NOIR for good and sufficient cause regarding the Petitioner's intent to employ the Beneficiary in the offered job. We will therefore withdraw SCOPS' finding on that ground. Because of the additional, equivocal evidence, however, SCOPS may wish to reconsider issuing another NOIR on this ground.
B. Ability to Pay the Proffered Wage
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal income tax returns, or audited financial statements. Id. 1
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered wage each year, beginning with the year of a petition's priority date. See generally 6 USCIS Policy Manual E.4(C)(l), www.uscis.gov/policy-manual. If a petitioner did not annually pay the 1 If a petitioner employs at least 100 people, a statement from a financial officer may demonstrate the business's ability to pay a proffered wage in lieu ofthe regulatory required material. 8 C.F.R. § 204.5(g)(2). The Petitioner has neither claimed nor demonstrated its employment of at least 100 people. p. 4 proffered wage or did not pay a beneficiary at all, USCIS considers whether the business generated annual amounts of net income or net current assets sufficient to pay any difference between the proffered wage and wages paid. See generally 6 USCIS Policy Manual E.4(C)(2). If net income and net current assets are insufficient, USCIS may consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967); see generally 6 USCIS Policy Manual E.4(C)(3). 2
SCOPS' NOIR asked the Petitioner to submit copies of its annual reports, federal tax returns, or audited financial statements for 2017 through 2024. The NOIR did not allege that, at the time of the petition's approval in July 20 l 7, the company had failed to demonstrate its ability to pay the proffered wage. Thus, the NOIR does not indicate that the evidence of record would have warranted the petition's denial on this ground. See Matter ofEstime, 19 I&N Dec. at 451 ('[W]e ask whether the evidence of record at the time the notice was issued, if unexplained and unrebutted, would have warranted a denial.")
Although unaddressed in SCOPS' NOIR, the record would have warranted the petition's denial based on the Petitioner's ability to pay. As proof of ability to pay, the company's initial petition included only a copy of its federal income tax return for 2015. The petition's priority date is September 23, 2016, the date DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5( d) ( explaining how to determine a petition's priority date). Thus, the petition lacked regulatory required evidence ofits ability to pay in 2016, the year ofthe petition's priority date. See 8 C.F.R. § 204.5(g)(2) (requiring a petition to demonstrate ability to pay "at the time the priority date is established"); see also 6 USCIS Policy Manual E.4(A) ("In order to establish ability to pay, the petition must include copies of the petitioner's annual reports, federal tax returns, or audited financial statements for each available year from the priority date.")
SCOPS did not notify the Petitioner of its omission of regulatory required evidence of its ability to pay in 2016. We will therefore remand the matter for consideration as a potential revocation ground.
Conclusion
The record does not support SCOPS' revocation grounds. But the Petitioner omitted regulatory required evidence of its ability to pay the proffered wage for the year of the petition's priority date. ORDER: The decision is withdrawn. The matter is remanded for entry of a new decision consistent with the foregoing analysis.