The Petitioner, a nonprofit foundation that funds environmental education and research programs, seeks to employ the Beneficiary as a safety and health specialist. The foundation requests his classification under the employment-based, 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). Organizations may sponsor aliens for U.S. permanent residence in this category to work in jobs requiring master's degrees or bachelor's degrees followed by at least five years' progressive experience in applicable specialties. 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 it erroneously approved the filing, as the Petitioner had not demonstrated its required ability to pay the offered job's proffered wage. On appeal, the foundation contends that it established its ability to pay based on its financial resources and those of its co-executive director. In 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 I&N Dec. 537,537 n.2 (AAO 2015), we conclude that U.S. Citizenship and Immigration Services (USCIS) policy bars consideration of the financial resources of the foundation's co-executive director to establish the organization's ability to pay. We will therefore dismiss the appeal.
Law
Immigration for 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 hann 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 USCIS. See section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Among other things, USCIS p. 2 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); Matter ofWing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977).
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. But, "at any time" before a beneficiary obtains 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. See Matter ofHo, 19 T&N Dec. at 590.
USCTS properly issues a notice ofintent to revoke (NOTR) a petition ifthe unexplained and unrebutted record at the time of the NOIR's issuance would have warranted the petition's denial. Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner does not respond to a NOIR or does not overcome the alleged revocation grounds, USCTS properly revokes a petition's approval. Id. at 451-52.
Analysts
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a petition's priority date until a beneficiary obtains U.S. permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must generally include copies of petitioners' annual reports, federal tax returns, or audited financial statements. Id.
When determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the foll proffered wage each year, beginning with the year of a petition's priority date. See generally 6 USCIS Policy Manual E.4(C)( 1 ), www.uscis.gov/policy-manual. If a petitioner did not annually pay the full proffered wage or did not pay a beneficiary at all, USCIS considers whether the organization generated annual amounts of net income or net current assets sufficient to pay any differences between the proffered wage and the wages paid. See generally 6 USCIS Policy Manual E.4(C)(2). If net income and net current assets are insufficient, the Agency may consider other factors potentially 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) ("The ability to pay analysis is more nuanced than simply reviewing wages paid, net income, and net current assets.") 1 The Petitioner's labor certification states the proffered wage of the offered job of safety and health specialist as $97,760 a year. The petition's priority date is December 18, 2015, 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).
SCOPS approved the petition in February 2017 and issued a NOIR in October 2023. Thus, to determine whether the record at the time of the NOTR's issuance would have warranted the filing's 1 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See Taiyang Foods Inc. v. USCIS, 444 F. App'x 115 (9th Cir. 2011); River St. Donuts v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009). p. 3 denial, we must examine evidence ofthe Petitioner's ability to pay from 2015, the year ofthe petition's priority date, until 2017, the year of the petition's approval.
The initial petition lacked copies of the Petitioner's annual reports, federal tax returns, or audited financial statements or evidence that it paid wages to the Beneficiary. In response to a request for additional evidence, the foundation stated that its "tax returns for 2015 do not evidence the financial wherewithal to pay the wage to the beneficiary."Claims not backed by documents The organization instead submitted a letter from its co-executive director to its chief executive officer (CEO). 2 The letter states:
I confirm my commitment to continue the funding and subcontracting ofenvironmental education and environmental research related to waste reduction and recycling, and sustainability projects, especially the public health and industrial safety aspects of solid waste operations.... As for my subcontract work to [the Petitioner], I will insure that [the organization] receives payment so that all of its costs are covered for [the Beneficiary], and will donate to cover any shortfall. 3 The Petitioner also submitted a copy ofthe co-executive director's individual federal income tax return for 2015 and a list of his monthly expenses.
The record supports the NOIR's issuance. "[N]othing in the governing regulation, 8 C.F.R. § 204.5, permits the [immigration service] to consider the financial resources of individuals or entities who have no legal obligation to pay the wage." Sitar Rest. v. Ashcroft, No. CIV.A.02-30197-MAP, 2003 WL 22203713, at *2 (D. Mass. Sept. 18, 2003); see generally 6 USCIS Policy Manual E.4(B) ("Generally, USCIS does not consider the financial resources of persons or entities that have no explicit legal obligation to pay the proffered wage."). The Petitioner has not demonstrated its coexecutive director's obligation to pay the offered job's proffered wage. Thus, his promise to help do so did not demonstrate the foundation's ability to pay. Also, even if we could consider the coexecutive director's financial resources, the record lacked evidence of his income and expenses in 2016 and 2017. Further, contrary to 8 C.F.R. § 204.5(g)(2), the record lacked copies of the foundation's annual reports, federal tax returns, or audited financial statements as evidence of its ability to pay. Thus, the record at the time ofthe NOIR's issuance would have warranted the petition's denial. See Matter ofEstime, 19 I&N Dec. at 451.
The Petitioner's NOIR response included copies of its federal tax returns for 2016 through 2022. As a nonprofit corporation, the foundation need not pay federal income taxes. But it submitted IRS Forms 990-PF, Return of Private Foundation, listing its revenues and expenses for those years. See U.S. Internal Revenue Serv. (IRS), "Instructions for Form 990-PF," www.irs.gov/instructions/i990pf ( describing IRS Form 990-PF as an annual information return that tax-exempt, private foundations must file).
As SCOPS found, the Petitioner's tax returns do not demonstrate its possession of sufficient revenues to pay the offered job's annual proffered wage of $97,760 in 2016 or 2017. The 2016 return shows 2 The letter indicates that, at that time, the Petitioner's co-executive director was the CEO of a consulting company. 3 On its Form 1-140, Immigrant Petition for Alien Workers, the Petitioner indicated its employment of six people. Because the foundation has not established its employment of at least I 00 people, a statement from a financial officer in lieu of other regulatory required evidence would not demonstrate its ability to pay the proffered wage. See 8 C.F.R. § 204.5(g)(2). p. 4 that the organization's expenses exceeded its revenues by $361, and its 2017 return reflects excess revenues of only $6,378. Also, the returns lack information needed to calculate the foundation's net current assets in those years.
The Petitioner's NOIR response continued to contend that the foundation's co-executive director would personally help pay the offered job's proffered wage. But, as previously discussed, USCIS generally does not consider the financial resources of a person who has no legal obligation to pay a proffered wage.
Other factors also do not demonstrate the Petitioner's ability to pay the proffered wage from 2015 through 2017. See Matter ofSonegawa, 12 I&N Dec. at 614-15. "Sonegawa is applicable to this case only if the failure of [ the Petitioner] to pay the proffered wage was an anomaly amongst profitable years." Taiyang Foods, 444 F. App'x at 115. Copies of the Petitioner's federal tax returns, however, do not establish the foundation's insufficient finances in 2016 as an anomaly. The returns indicate that the foundation lacked excess revenues sufficient to pay the offered job's proffered wage from 2016 through 2022.
On appeal, the Petitioner contends: "The totality of the circumstances of the finances of the business and in combination with the Officer[']s willingness to forego some of their own wage are sufficient enough to provide ability to pay." The foundation asserts that USCIS policy allows consideration of the co-executive director's financial resources, noting that the policy states: "Ultimately, USCIS considers all evidence relevant to the petitioner's financial strength and the significance of its business activities, whether listed in the regulation or related to other metrics." 6 USCIS Policy Manual E.4(B). The Petitioner, however, quotes USCTS policy out of context. The policy manual goes on to specifically state:
A legal entity generally has a separate existence from its shareholders, members, managers, officers, or owners. Generally, USCIS does not consider the financial resources of persons or entities that have no explicit legal obligation to pay the proffered wage, including a parent company, shareholders and officers of a c01poration, members or managers of a limited liability company (LLC) ( even if the LLC is taxed as a partnership or disregarded entity), and limited partners.
Id. ( emphasis added). In the case of a general partnership, the policy manual allows consideration of a general partner's individual financial resources. See 6 USCIS Policy Manual E.4(B). But the Petitioner is not a general partnership, nor is its co-executive director a general partner. We will therefore consider only the foundation's financial resources. See 8 C.F.R. § 204.5(g)(2) (requiring "evidence that the prospective United States employer has the ability to pay the proffered wage.") ( emphasis added).
The Petitioner also submits a copy of its federal tax return for 2023. But the foundation's 2023 financial resources would not have warranted the petition's approval in 2017. Even if relevant, the 2023 return would not demonstrate the organization's ability to pay that year. The Petitioner argues that its 2023 revenues of $98,926 exceed the offered job's $97,760 annual wage. But the organization p. 5 disregards its expenses that year. The return shows that its expenses exceeded its revenues in 2023, resulting in a $2,695 loss.
Conclusion
The Petitioner has not demonstrated its required ability to pay the proffered wage. We will therefore affirm the petition's denial.
ORDER: The appeal is dismissed.