dismissed EB-1C Case: Trade

identifYing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: ICE: NEBRASKA SERVICE CENTER Date: MAR 0 9 2011 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § lI53(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was initially approved by the Director, Nebraska Service Center. 
On further review of the record, the director determined that the petitioner was not eligible for the benefit 
sought. Accordingly, the director properly served the petitioner with a notice of his intention to revoke 
(NaiR) the approval of the preference visa petition, and his reasons therefore. The director ultimately 
revoked the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner is a New York corporation that seeks to employ the beneficiary as its president. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 u.s.c. § 1153(b)(I)(C), as a multinational 
executive or manager. 
Section 203(b) ofthe Act states, in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
• • • 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the al ien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1 )(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Upon further review of the record, the director determined that the Form 1-140 was not approvable based on 
two grounds: I) the petitioner failed to establish that it had been doing business for one year prior to filing 
the Form 1-140 per 8 C.F.R. § 204.5(j)(3)(i)(D); and 2) the petitioner failed to establish that the beneficiary 
was an employee of the foreign entity. 
On appeal, counsel disputes both grounds cited as reasons for the revocation. Counsel properly points out 
that the director did not include the second ground as a basis for the intended adverse decision when issuing 
the NaiR and that the revocation therefore cannot be based upon a ground that was not previously cited. The 
AAO agrees with counsel's reasoning and hereby withdraws the second ground as a basis for the revocation. 
Although counsel indicates that a brief and/or other supporting evidence will be submitted within 30 days of 
the appeal, there is no evidence that the record has been supplemented in any way. As such, the record will 
be considered complete and a decision will be issued based on the record as currently constituted. 
The primary remaining issue in this proceeding is whether the petitioner has submitted sufficient evidence to 
establish that it was doing business for one full year prior to filing the Form 1-140. 
The regulation at 8 C.F.R. § 204.50)(2) defines doing business as "the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
In the present matter, the primary factor that resulted in the revocation was the director's finding that the 
petitioner filed its Form 1-140 on July 30, 2007, which was less than one year since October 27, 2006, the 
petitioner's date of incorporation. The director determined that the petitioner could not have been doing business 
for at least one year as of the date the Form 1-140 was filed if the petitioner did not have a corporate existence for 
the full one-year time period. 
On appeal, counsel asserts that U.S. Citizenship and Immigration Services (USCIS) rejected the initial filing 
of the petitioner's Form 1- I 40 and that July 30, 2007 therefore could not be deemed as the official filing date. 
Counsel contends that the date the petitioner resubmitted the Form 1-140, which he claims took place on 
October 29, 2007, should be deemed the official filing date. Counsel's argument, however, is not persuasive, 
as the date offered by counsel as the official filing date-October 29, 2007-was not stamped on the Form 1-
140 nor was this shown as the official priority date on the front page of the Form 1-140. As July 30, 2007 is 
the only date that was clearly stamped and shown as the priority date on the front of the Form 1-140, it will be 
deemed the official filing date. See 8 C.F.R. § 103.2(a)(7). As such, the AAO will explore counsel's argument 
on appeal where he asserts that the petitioner meets the criteria of 8 C.F.R. § 204.5(j)(3)(i)(D) by virtue of being 
the successor-in-interest to a previously existing company that had been doing business for well beyond the one­
year period prior to the date the instant Form 1-140 was filed. Specifically, counsel asserts that the petitioner is 
the success-in-interest to A Plus Express (N.Y.), Inc. 
The record shows that in support of the Form 1-140, the petitioner submitted the following documents: 
I. A letter dated June 4, 2007 and signed by the petitioner's counsel in his claimed capacity as the 
petitioner's secretary and chief legal counsel. The letter is titled "Confirmation of Appointment" 
and is written on letterhead containing the petitioner's name followed by the letters "d/b/a" to 
indicate that the petitioner was authorized to do business under the 
~urports to inform the that on 24, 2007 
_gave permlssIOn to 
establish the petitioner as a wholly owned subsidiary in the United States. The letter further 
states that on November 2, 2006 the beneficiary was appointed president of the petitioning entity 
at a meeting of shareholders and that the petitioner's board of directors reached a resolution on 
May 28, 2007 approving the acquisition of the 
petitioner's wholly owned subsidiary. The letter indicated that until the beneficiary assumes his 
position as president of the petitioning entity, he would remain president of •••• 
Page 4 
2. An English language translation of a document titled "Request for Approval of [SDHB]'s 
Application to Establish a Subsidiary Abroad," which purportedly contains the seal of Jinan 
Foreign Trade and Economic Cooperation Bureau dated January 21, 2007. 
3. An English language translation of a document dated December 29, 2006 and titled "Approval of 
[SDHB] to Establish a Subsidiary Company in the United States." Although this document 
contains a statement from an English language translator attesting to her proficiency in the 
English and Chinese languages and, therefore, the accuracy of the translation, the translator's 
signature does not appear anywhere on the document. 
4. A document purporting to be an approval notice issued by the •••••••••••• 
. "" .. _111_._ permitting _ to set up the petitioning entity as 
wholly owned subsidiary. The document contains two unexplained dates. One 
date-April 26, 2007-is affixed to the bottom left hand comer of the document and indicates 
that this is the date of the document. Another date-April 23, 2007-appears below the Seal of 
the Ministry of Commerce of the People's Republic of China. 
5. A document purporting to be an approval notice issued by the 
•••••••••••• permittin~ to set up a WIIIJlIV 
United States. The official government seal is shown as stamped on June 29, 2007. 
6. A purported translation ofthe Ministry of Commerce of the People's Republic of China's consent 
allowing~o set up a U.S. subsidiary. The date below the seal is marked as April 30, 2007. 
7. Minutes that were taken at a May 28,2007 board of directors meeting where it was resolved that 
~ would be wholly owned by the petitioner and would be a division within the 
petitioning entity. 
8. An English language translation of_ resolutions dated May 25, 2007 conveying similar 
information as was conveyed in No.7 above. 
It is noted that the documents discussed in Nos. 2, 4, 5, and 6, above, were not accompanied by a statement from 
the translator certifYing the document as complete and accurate. See 8 C.F.R. § 103.2(b)(3). 
Additionally, the record shows that in the petitioner's June 10, 2008 response to a request for evidence (RFE), the 
petitioner resubmitted a number of the documents listed above and also provided numerous additional supporting 
documents including, but not limited to, tax returns covering tax periods from June 1, 
2006 through May 31, 2007 and from June 1,2007 through May 31, 2008, respectively, 2007 IRS Form W-2s 
issued by the petitioner, the petitioner's 2006 tax return, and quarterly federal tax returns for various quarters in 
2007 issued by the petitioner and by ••••• 
On January 30, 2009, the director issued a notice of intent to revoke approval of the petition based on the 
petitioner's failure to establish that it was doing business for one year prior to filing the Form 1-140. The director 
expressly rejected the petitioner's successor-in-interest claim, pointing out that both the petitioner and _ 
are currently active business entities according to the New York State Division of Corporations. 
Page 5 
In response, counsel submitted a letter dated February 28, 2009 in which he pointed out that the petitioner 
acquired 100% shares by virtue of SORB's transfer of such shares to the petitioner. Counsel stated 
that just because has not been dissolved does not mean that it is actively doing business, regardless of 
its active status with the New York State Division of Corporations. Counsel added that Jj stopped all 
business operations in August 2007 and further claimed that the petitioner has continued to carry on with all of 
_ business at the same business address. 
The petitioner also provided a sworn affidavit from the beneficiary and a letter from the petitioner's accountant as 
supporting evidence. In the . which was executed on FebI1llll)' 28, 2009, the beneficiary stated that he is 
the chairman and president the petitioner, and _ He further stated that after _cquired 
all ownership to and subsequently that interest to its wholly owned subsidiary, i.e., the 
petitioner, the petitioner continued to carry out business operation at the same location and with the 
same employees and therefore be<:anle 
In the accountant's letter dated February 23, stated that the State Department of New York 
Division of Corporations does not require corporate filing to establish a change in a company's ownership and 
further added that unless a company is actively dissolved, the Division of Corporations would continue to show 
_as an active corporation even if it was acquired by or merged into another company. 
Additionally, the petitioner provided photocopies of original stock certificates issued by _ and the neW 
stock certificates, which purportedly void the transfers made in the original certificate nos. one and two and 
replace those transfers with new transfers made to the petitioner via certificate no. three. 
On May 24, 2009, the director issued the final decision revoking approval of the petition based on the conclusion 
that the petitioner failed to establish compliance with 8 C.F.R. § 204.50)(3)(i)(D), which requires the petitioner 
to establish that it had been doing business for one full year prior to filing the Form 1-140. The director 
determined that the petitioner failed to provide adequate documentation showing that it became the successor­
in-interest of a previously existing company. The director concluded that the petitioner did not provide 
sufficient evidence showing that it has assumed all of the rights, duties, obligations, and assets of the original 
entity in order to establish itself as a successor-in-interest. 
Although counsel maintains the petitioner's original successor-in-interest claim, no evidence is submitted on 
appeal and thus counsel fails to overcome the director's findings. 
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 1473 (8th Ed. 2004). A mere transfer of assets, even one that takes up a 
predecessor's business activities, does not necessarily create a successor-in-interest. ld.; see also 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. While the merger or consolidation of a business organization into another will give 
rise to a successor-in-interest relationship because the assets and obligations are transferred by operation of 
law, the purchase of assets from a predecessor will only result in a successor-in-interest relationship if the 
parties agree to the transfer and assumption of the essential rights and obligations of the predecessor 
necessary to carry on the business in the same manner with regard to the assets sold. See generally 19 Am. 
Jur. 2d Corporations § 2170 (2010). 
Page 6 
Considering the generally accepted definition of successor-in-interest, a petItIOner may establish a valid 
successor relationship for immigration purposes. However, in order to do so, the petitioner must fully 
describe and document the transfer and assumption of the ownership of all, or the relevant part of, the 
predecessor by the claimed successor. 
Evidence of transfer of ownership must show that the successor not only purchased assets from the 
predecessor, but also the essential rights and obligations of the predecessor necessary to carry on the business 
in the same manner as the predecessor. The successor must continue to operate the same type of business as 
the predecessor and the essential business functions must remain substantially the same as before the 
ownership transfer. 
Applying the analysis set forth above to the instant petition, the documentation submitted by the petitioner 
does not meet the evidentiary requirements. By definition, the actions required to establish a successor-in­
interest must be more than the mere acquisition of one company's stock by another company where both 
companies continue to exist and do business. In the present matter, aside from repeatedly claiming to be a 
successor-in-interest and providing documentation of limited probative value to show that the petitioner has 
purchased the stock of a previously existing U.S. entity, the petitioner has not provided the requisite 
documentary proof. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Rather, while the 
documents on record indicate that the petitioner may have acquired ownership interest in Apex-NY, there is 
little evidence to suggest that the petitioner became Apex-NY's successor-in-interest. There are a number of 
documents that support the AAO's finding and other documents that show the petitioner's assertions as 
unreliable and generally lacking in credibility. 
First, the AAO points to the tax returns that were simult~ubmitted by both the petitioner and by 
previously noted, the petitioner submitted _ tax returns for 2006 and 2007, which 
the petitioner's financial status beyond July I, 2007 when _ purportedly ceased all 
business activity according to the beneficiary's 2009 affidavit and the 2009 letter from the petitioner'S 
accountant. The AAO further observes that _ continued to file quarterly federal tax returns during 
the third quarter of 2007, despite the claim that it ceased all business activity as of July 1,2007. The record 
shows that the petitioner also continued to simultaneously file quarterly and yearly tax returns during 
overlapping time periods and that each entity maintained its own separate employer identification number. 
Second, the AAO will address statements made by the petitioner's account, Francis Lai, in the February 23, 
2009 letter, which was submitted in response to the NOIR. Namely, in an effort to address the director's 
NOIR findings regarding the continued active status of_as shown in the New York State Division of 
Corporations,_ stated that "the Department does not require the filing of a Certificate of Dissolution of 
a company after it is acquired by, or merged into, another company." However, section 905 of the New York 
Business Corporation Code includes the following pertinent provisions: 
(c) A certificate of merger, entitled "Certificate of merger of ..... into .... (names of 
corporations) under section 905 of the Business Corporation Law", shall be signed and 
delivered to the department of state by the surviving corporation. If the surviving corporation 
is the parent corporation and such corporation does not own all shares of each subsidiary 
corporation to be merged, such certificate shall be delivered not less than thirty days after the 
Page 7 
giving of a copy or outline of the material features of the plan of merger to shareholders of 
each such subsidiary corporation, or at any time after the waiving thereof by the holders of 
all of the outstanding shares of each such subsidiary corporation not owned by the surviving 
corporation. 
Thus, assertions made by the petitioner's accountant are directly contradicted by the above relevant state law 
provisions. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Malter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Furthermore, doubt cast on any aspect of the petitioner's proof may, of course, lead 
to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Id, at 591. 
In addition to the anomaly discussed above, the AAO makes note of additional anomalies that give rise to 
further doubts as to the reliability of the supporting evidence and the credibility oftbe petitioner's claim. One 
of the most significant inconsistencies involves the numerous foreign documents whose purported translations 
the petitioner submitted in support of the initial petition. Such documents included requests for and approvals 
of SDHB's purchase of a wholly-owned u.s. subsidiary, i.e., the petitioning entity. Despite the fact that the 
petitioner was established on October 27, 2006, there are numerous foreign documents that show that the 
request for such purchase was submitted to tbe appropriate foreign office on January 21,2007, thus indicating 
that the U.S. entity had been established before the foreign entity requested approval to establish tbe entity. 
Another document-one that purports to approve the foreign entity's request to establish a U.S. subsidiary­
shows that the request was approved on December 29, 2006, which is almost a full month prior to the date of 
the document that purportedly represents the foreign entity's request to set up a u.s. subsidiary. 
In summary, the discrepancies and errors catalogued above lead the AAO to conclude that the evidence of the 
beneficiary's eligibility is not credible. Accordingly, the petitioner has not established the beneficiary's 
eligibility for the requested immigrant visa classification. 
Section 205 of the Act, 8 U.S.C. § 1155, states: "The Attorney General may, at any time, for what he deems to 
be good and sufficient cause, revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Malter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Malter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Malter of Estime, 19 I&N 450 (BIA 1987)}. 
· . 
Page 8 
In light of the numerous discrepancies and evidentiary deficiencies described above, the AAO finds that the 
petitioner was not eligible for the immigration benefit sought at the time the Form 1-140 was filed. 
Accordingly, the approval of the petition will remain revoked. In visa petition proceedings, the burden of 
proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.s.c. 
§ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.