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U.S. Citizenship and Immigration Services

MATTER OF KBJ-C-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 26, 2016

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM I -140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a restaurant, seeks to employ the Beneficiary as a food service manager. It requests classification of the Beneficiary as a skilled worker under the third preference immigrant classification. See Immigration and Nationality Act (the Act), section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident status to work in a position that requires at least 2 years of training or experience.

The Director, Nebraska Service Center, initially denied the petition for abandonment. The Director subsequently granted the Petitioner's motion to reopen and affirmed his denial of the petition. The Director determined that the record did not establish the Petitioner as a successor-in-interest to the business entity that filed the labor certification, its ability to pay the Beneficiary the proffered wage, or the Beneficiary's qualifications for the offered position.

The matter is now before us on appeal. The Petitioner asserts that in reaching his decision on its ability to pay, the Director did not consider relevant case law. It also asserts that the record clearly establishes it as a successor-in-interest to the labor certification employer. Upon de novo review, we will dismiss the appeal.

I. LAW AND ANALYSIS

Employment-based immigration is generally a three-step process. First, an employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the foreign national must 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.

As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by DOL. 1 The priority date of

1 See section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2).

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the petition is June 26, 2008.2

identification number for Alien Worker, was filed by

The labor certification was filed by with federal employer The instant Form 1-140, Immigrant Petition with (Petitioner).

Under certain circumstances, a petitioner may rely on a labor certification approved for another business entity if it is found to be a "successor-in-interest" to the original labor certification employer. The generally accepted definition of a successor-in-interest is: "One who follows another in ownership or control of property. A successor in interest retains the same rights as the original owner, with no change in substance." Black's Law Dictionary 1570 (9th ed. 2009) (defining "successor in interest"). Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986), a binding, U.S. Immigration and Naturalization Service (INS, now USCIS) decision, designated as a precedent by the INS Commissioner in 1986, outlines the circumstances under which a successor-in­interest may be established.3

A petitioner may establish a valid successor relationship for immigration purposes if it satisfies three conditions. First, it must fully describe and document the transaction transferring ownership of all, or a relevant part of, the predecessor employer. Second, it must demonstrate that the job opportunity is the same as that originally offered on the labor certification. Third, it must prove by a preponderance of the evidence that it is eligible for the immigrant visa in all respects. 4

We note, however, that USCIS does not read Dial Auto as standing for the proposition that a valid successor relationship may only be established through the assumption of "all" or a totality of a predecessor entity's rights, duties, and obligations. Evidence of transfer of ownership must show that the successor not only purchased assets from its predecessor, but also the essential rights and obligations of the predecessor necessary to carry on the business.

On appeal, the Petitioner contends that the record clearly establishes it as the successor-in-interest to the business entity that filed the underlying labor certification. It also asserts that it will submit a

brief with a more detailed discussion of its reasoning and additional documentation within 30 days. However, as of this date, the record does not contain the promised brief or documentation, which, by regulation, is to be submitted directly to this office. 8 C.F.R. § 103.3(a)(2)(viii). Therefore, we consider the record in this matter to be complete.

A. Documentation of Transfer

To document its ownership of the Petitioner has submitted a copy of a purchase agreement

2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 3 The regulation at 8 C.F.R. § 103.3(c) provides that precedent decisions are binding on all immigration officers in the administration of the Act. 4 See also Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, Successor-in­Interest Determinations in Adjudication of Form 1-140 Petitions; Adjudicators Field Manual (AFM) Update to Chapter 22.2(b)(5) 7 (August 6, 2009), http: //www.uscis.gov/laws/policy-memoranda.

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demonstrati{lg that! on September 24, 2013, it paid $10,350 to acquire the assets of Evidence of the purchase is also found in the Petitioner's and 2013

IRS Forms 1120S, U.S. Income Tax Returns for an S Corporation. However, a transfer of assets, even one that takes up a predecessor's business activities, does not necessarily create a successor-in­interest. See Holland v. Williams Mountain Coal Co., 496 F.3d 670, 672 (D.C. Cir. 2007). An asset transaction occurs when one business organization sells property- such as real estate, machinery, or intellectual property- to another business organization. The purchase of assets from a predecessor will only result in a successor-in-interest relationship if the parties also agree to the transfer and assumption of the essential rights and obligations of the predecessor necessary to carry on the business.6 See generally 19 Am. Jur. 2d Corporations § 2170 (201 0).

We do not, however, find the above agreement to demonstrate a transfer of the essential rights and obligations from to the Petitioner. Although the record contains a September 1, 2015, statement from the Petitioner's president, in ,which he claims to have purchased

and to have ''inherited" its debt, the submitted September 24, 2013, agreement states only that "shall sell, assign, transfer, and convey to Purchaser" its assets,

which are defined in the agreement as "restaurant furniture, restaurant equipment, and fixtures." Accordingly, the agreement does not demonstrate that the Petitioner acquired the essential rights and obligations of on September 24, 2013.

Further, claim to have inherited debt is contradicted by the language of the agreement, which states that the purchase of assets is to be "free and clear of all liens, encumbrances and liabilities." Accordingly, the Petitioner has not demonstrated that, in addition to purchasing the assets of the it also acquired the essential rights and obligations necessary . to carry on its business, the first of the conditions that a petitioner must meet to establish itself as a successor-in-interest. The Petitioner cannot meet its burden of proof in this matter simply by claiming a fact to be true, without supporting documentary evidence. See Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 369 (AAO 2010). A petitioner must support assertions with relevant, probative, and credible evidence. Chawathe, 25 I&N Dec. at 369.

B. Same Job Opportunity

A petitioning successor must also demonstrate that the job opportunity is the same as that originally offered on the labor certification. To ensure that the job opportunity remains the same as originally certified, the successor must continue to operate the same type of bl\siness as the predecessor, in the

5 The agreement indicates that closing will occur on or before September 27, 2013; however, the record does not indicate the exact date that the closing took place. J

6 The mere assumption of immigration obligations, or the transfer of immigration benefits derived from approved or pending immigration petitions or applications, will not give rise to a successor-in-interest relationship unless the transfer results from the bona fide acquisition of the essential rights and obligations of the predecessor necessary to carry on the business. See 19 Am. Jur. 2d Corporations § 2170; see also 20 C.F.R. § 656.12(a).

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same metropolitan statistical area, and the essential business functions must remain substantially the same as before the ownership transfer. Dial Auto, 19 I&N Dec. at 482. This requirement was noted by the Director in his request for evidence (RFE) dated July 30, 2015, and the Petitioner failed to provide evidence in response to the RFE, or on appeal, to establish that the job opportunity is the

' same as that originally offered on the labor certification. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). Therefore, the Petitioner has not established that the job opportunity is the same as that originally offered on the labor certification.

C. Eligibility For an Immigrant Visa

In order to establish eligibility for the immigrant visa in all respects, a petitioner must support its claim with all necessary evidence, including evidence of ability to pay and evidence that the Beneficiary possesses the requirements for the proffered job.

1. Ability to Pay the Proffered Wage

The petitioning successor must prove its predecessor's ability to pay the proffered wage as of the priority date on June 26, 2008, and until the date of transfer of ownership. In addition, it must establish its ability to pay the proffered wage from the transfer of ownership forward. 8 C.F.R. § 204.5(g)(2); see also Dial Auto, 19 I&N Dec. at 482. On appeal, the Petitioner asserts that the Director "erred as a matter of law and in fact, by failing to take into consideration the case law cited regarding the ability to pay issues." The Petitioner did not submit any additional evidence or case law relating to its ability, or the ability of to pay the proffered wage. Going on rec·ord without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.

The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:

Ability of prospective employer to pay wage. Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.

A petitioner must establish that its job offer to a beneficiary is realistic as of a visa petition's priority date and that this offer remains realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. A petitioner's ability to pay 'the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2).

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Here, the priority date of the visa petition is June 26, 2008, and the labor certification reflects that the proffered wage is $19.46 per hour or $40,476.80 per year.

In determining the ability to pay the proffered wage during a given period, USCIS will first examine whether the Petitioner or its predecessor employed and paid the Beneficiary during any relevant period. The record contains evidence of wages paid to the Beneficiary by as follows:

Year Form W-2 Wages Paid

2008 $13,200 2009 $13,800 2010 $16,200 2011 $15,600 2012 $15,600

. 2013 $20,500

Thus, the Petitioner must demonstrate that can pay the difference between wages actually paid to the Beneficiary and the proffered wage in 2008 through 2013. The record also shows that the Petitioner paid $13,650 and $48,750 in wages to the Beneficiary in 2013 and 2014 respectively.

USCIS will next examine net income7 and net current assets. Net current assets are the difference between current assets and current liabilities. 8 tax returns demonstrate its net income and net current assets for 2008 through 2013, as shown in the table below.

Tax Proffered Wages Balance

Net Net Current of Wage

Year Wage Paid Owed

Income Assets

2008 $40,477 $13,200 $27,277 $35,533 $14,402 2009 $40,477 $13,800 $26,677 $23,009 '-$7,218 2010 $40,477 $16,200 $24,277 -$17,271 -$101,015 2011 $40;477 $15,600 $24,877 $18,320 -$175,323 2012 $40,477 $15,600 $24,877 $70,719 -$135,058 2013 $40,477 $20,500 $19,977 $192,991 $0

7 Where an S corporation's income is exclusively from a trade or business, USCIS considers net income to be the figure for ordinary income, shown on line 21 of page one of Form 1120S. However, where an S corporation has income, credits, deductions or other adjustments from sources other than a trade or business, they are reported on Schedule K. If the Schedule K has relevant entries for additional income, credits, deductions, or other adjustments, net income is found on Schedule K. 8 According to Barron 's Dictionary of Accounting Terms 117 (3'd ed. 2000), "current assets" consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). !d. at 118.

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Based on the table above, for the years 2009 through 2011, did not have sufficient net income or net current assets to pay the difference between the proffered wage and wages already paid. Therefore, the Petitionerhas not established the ability of to pay the proffered wage from the priority date on June 26, 2008, to the date of the purported transfer on September 24, 2013.

r'

The record contains the Petitioner's 2013 federal tax return. The tax return lists the Petitioner's net income as -$11,903 and net current assets as -$59,421. The Petitioner did not establish that it can pay the difference between wages actually paid to the Beneficiary and the proffered wage in 2013. The Petitioner did not submit its tax returns, audited financial statements, or annual reports for 2014 and 2015 as required by 8 C.F.R. § 204.5(g)(2). Therefore, the Petitioner has not established its ability to pay the proffered wage from the date of the purported transfer on September 24, 2013, onward.

The record does not establish the ability of to pay the proffered wage from the priority date to the date of the purported transfer on September 24, 2013, or the Petitioner's ability to pay the proffered wage from the date of the purported transfer onward.

2. Beneficiary Qualifications

A petitioner must establish a beneficiary's possession of all the education, training, or experience stated on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In the present case, the labor certification requires the Beneficiary to have 24 months of experience in the offered position of food service manager. It also indicates that no other type of experience will be accepted.

In Part K. of the labor certification, the Beneficiary lists the following employment experience:

• Food service manager, 26, 2008 (the filing date of labor certification); and

• Food service manager, 1997.

The regulation at 8 C.F.R. § 204.5(1)(3) provides:

(ii) Other documentation-

from November 1, 2002, to June

from April 27, 1995, to May 31 ,

(A) General. Any requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien.

(B) Skilled workers. If the petition is for a skilled worker, the petition must be

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accompanied by evidence that the alien meets the educational, trmmng or experience, and any other requirements of the individual labor certification, meets the requirements for Schedule A designation, or meets the requirements for the Labor Market Information Pilot Program occupation designation. The minimum requirements for this classification are at least two years of training or expenence.

The record contains two letters from the owner of California), both ofwhich are dated April10, 2001. These

letters do not, however, demonstrate that the Beneficiary has 24 months of experience as a food service manager. In one of the letters, states that she employed the Beneficiary as a restaurant manager on a full-time basis from April 27, 1995, until May 1997, and that he was responsible for "scheduling work, assigning duties, ordering ingredients, and servicing customer[s]." In the other letter, indicates that the Beneficiary worked for her restaurant as a cook during this same time period. In light of inconsistent descriptions of the Beneficiary' s employment while he worked at her restaurant, we do not find the record to demonstrate that the experience he acquired during this period was in the offered position of food service manager, the only employment experience accepted by the Petitioner.

We also note that the Form G-325A, Biographic Information, submitted by the Beneficiary in support of his adjustment of status application reflects that the Beneficiary claimed that he had worked as a manager for both and the during the period April 1995 to May 1997. Accordingly, we do not find the record to establish the Beneficiary's qualifying full-time experience with Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of the evidence submitted in support ofthe requested immigration benefit. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988).

The Beneficiary also stated on the labor certification that, at the time of its filing, he had worked for the as a food service manager since November 1, 2002. We will not, however, consider this experience in determining whether he is eligible for the offered position.

The regulation at 20 C.F.R. § 656.17 stipulates that a beneficiary may not qualify for an offered position based on employment experience gained with a petitioner unless it is established that the work performed by the beneficiary was not "substantially comparable" to the job offered. In general, if a petitioner answers "No" to the question in Part J.21. of the labor certification (Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?), then experience with the employer may be used by a beneficiary to qualify for a proffered position as long as the experience was not substantially comparable9 and

9 A definition of" substantially comparable" is found at 20 C.F.R. § 656.17:

5) For purposes of this paragraph (i):

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the terms of the labor certification at Part H.l 0 provide that applicants may qualify for the job opportunity through an alternate occupation.

In the present case, however, the labor certification filed by the reflects that, while it provided a negative response to the question in Part J .21., it indicated in Part H. I 0. that it would not accept experience in an alternate occupation. Further, the labor certification reflects that the

employed the Beneficiary in the offered position of food service manager and that the duties of the position, as described by the Beneficiary in Part K. of the labor certification, were the same as those of the offered position; as listed in Part H.ll. of the labor certification. Therefore, at the time the labor certification was filed, the Beneficiary could not have qualified for the offered position based on his employment with the since that experience was gained in a position with duties substantially comparable to those of the offered position. As the Beneficiary's experience with the would not have qualified him for the offered position as of the labor certification's filing date, the Petitioner may not rely on this experience to establish his eligibility in the present matter. A petition may not be approved if a beneficiary was not qualified as of the petition's priority date. Katigbak, 14 I&N Dec. at 49.

For the reasons indicated, neither the Beneficiary's prior employment with nor that with the provide him with the 24 months of experience in the offered

position required by the labor certification.

II. CONCLUSION

The Petitioner has failed to establish that it is a successor-in-interest to the employer that filed the labor certification because it has not fully described and documented the transaction transferring ownership of the predecessor; it has not demonstrated that the job opportunity will be the same as originally offered; and it has not demonstrated that the claimed successor is eligible for the immigrant visa in all respects, including whether it and the predecessor possessed the ability to pay the proffered wage for the relevant periods and whether the Beneficiary meets the requirements for the proffered job. In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127 (BIA 2013). Here, that burden has not been met. Accordingly, we will dismiss the appeal.

ORDER: The appeal is dismissed.

Cite as Matter of KBJ-C-, Inc., ID# 07896 (AAO Oct. 26, 20 16)

(ii) A "substantially comparable" job or pos1t10n means a job or pos1t10n requmng performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.

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