dismissed EB-2 Case: Software Engineering

(b)(6)
DATE: DEC 0 5 2013 OFFICE: TEXAS SERVICE CENTER 
lNRE: Petitioner: 
Beneficiary: 
().~. Pepart.ment of Homeland Security 
U.S. Citizc;nship and Immigration Se~icc;s 
Administrative Appeals Offlc:e (AAO) 
20 Massachusetts Ave., N.W., !VIS 2090 
Washington, DC 20529-2090 
u.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Iminigtant Petition {or Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptio .nal Ability Pursuant to Section 203(b)(Z)(A) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
. ON J;3EHALF OF PETITIONER: 
. INSTRUCTIONS: 
Enclosed plf!a:se find the decision of the Administrative Appeals Office (AAO) in your case ~ This is a n 0 n~ 
prece<Ient deci~ion. The AAO does not announce new constructions of .law nor e.stabtish agency poliCy 
through non-precedent decisions. 
Thank you, 
)d(l ft 
·~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEI)ENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center (director), approved the immigrant visa petition 
and certified the niattet to the Chief, Administrative Appeals Office (MO). The AAO withdrew the 
director's decision 
and denied the petition. A corporation that claims to be the petitioner's successor• 
in-interest now appeals th~ AAO's decision. Pursuant to the regulation at 8 · C.F.R 
§ 103.3(a)(2)(v)(A)(J), the AAO will reject the corporation's submission as improperly filed. 
A director may certify a decision to the AAO ·~when the case involves an unusually complex or 
novel issu~ of law or fa.ct." 8 C.F.R. § 103.4(a)(1). Certification to the AAO may occur "only after 
an initial decision is made," 8 C.F.R. §§ 103.4(a)(4), (5). 
T.he petitioner was a. software consulting company that sought to permanently employ the benefidary in 
the Unit~d States as a software engineer. On October 5, 2012, the director approved the petition, which 
requests claSsification-of the beneficiary as an advanced degree professional under section 203(b)(2)(A) 
of the Iriunigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A), and certified his decision to 
th.e AAO, 
An EtA Form 9089, Application for Permanent Employment Certification (labor certification), 
approved by the U.S. Department of Labor (DOL), accompanies the petition. The priority date of the 
petition, which is tbe date the DOL accepted the labor certification for processing, is March 18, 2011. 
See 8 C.F.R. § 204.5(d). 
In his Not_ice of Certification, also dated October 5, 201:2, the director stated that the petition 
involves "a novel issu~" : whether classification as an advanced degree professional requires the 
beneficiary's 
U.S. advanced degree to be issued by an accredited university. 
On February 12, 2013, the AAO withdrew the d~rector's decision and denied the petition. the AAO 
found that U.S. Citizenship and Immigration Services (USCIS) regulations imply an accreditation 
req~ifement for U$. advanced degrees and that the ll.S. university that the beneficiary attended 
lacked accreditation when_ it issued his master's degree. 
On March 15, 2013, "appealed" the AAO's decision, 
claiming to be the petitioner's successor-in-interest. See Matter of Dial Auto Repair Shop, Inc., 19 
I&N Dec. 481, 482-83 (Comm'r 1986) (explaining the conditions under which an entit.y that 
acquires tbe essential rigbt_s and obligations needed to carry on a labor certification employer's 
· business can continu_e to offer a job opportunity for immigration purposes). 
asks the AAO to withdraw the director's certification and remand the case for issuance of 
a new Notice of Certific:atiol1. : claims tha.t the petitioner and its counsel, who also 
represents did not receive a Foi'ni I-290C, Notice of Certification~ See 8 C.F.R. § 
103.4(a)(2) ("the official certifying the case shall notify the affected party using a Notice of 
Certification (Form I-290C).") Alternatively, asks the AAO to trea.t it$ "appeal'>' as a motion 
and grant counsel 30 days in which to submit a brief to support the motion. 
(b)(6)
. ! 
NON-PRECEDENT DECISION 
Page 3 
On September 13, 2013, the AAO issued a Notice of Intent to Dismiss (NOID) the filing to 
a_nd counsel. Tht! notice informed them that the AAO lacks authority to adjudicate appeals ot Its own 
· decisions. See U.S. Dep't of Homeland Sec. De.leg~tion No. 0150.1 para. (2)(U) (Mar. 1, 2003) 
(granting USCIS the au:tho:rity to adjudicate only the appellate matters in the former regul'!tiop. at 8 
C.F.R. § 103.1(f)(3)(iil) (2002)). 
The notice also informed and couns.el that the AAO C(ln (lc;cept a filing only from an 
"affected party.'' See 8 C.F.R. § 103.3(a)(2)(v)(A)(J) (the AAO must reject an appeal filed by a person 
or entity not entitled to file it). The NOID stated that the AAO intends to reject the filing unless 
demonstrates a successor relationship to the petitioner, in which case the AAO may accept 
the filing as a motion to reopen. 
Successor-in .. Interest 
Under Dial, a sueceSSor-in-interest must: provide detailed evidence of the. terms of its acqu_isitiol.l of 
the labor certification. emplo.yer; demonstrate that the job opportunity remains the same as $tated. on 
the labor certification; and establish its eligibility for the immigrant visa petition in all respects, 
inclu.ding the conU11uip.g ~bility of it and tile labor certification employer to pay the proffered wage 
from the petition's priority date onward, See Dial, 19l&N Dec;. at 482-83. · 
filing included a copy of a November 16, 2012 merger agreement between it aod the 
petitioner. . chief executive officer (CEO), whom the agreement also identified as the 
petitiooer's CEO, signed the merger agreement for both and the petition~r. The 
agreement, wb_icb w~~ effective December 1, 2012, appeared self-serving and invalid because 
CEO signed the document for both p~rties. Therefore, the AAO, in its NOib, requested 
evidence of the authorization of CEO to sign the merger <tgreement for the petitioner. 
The AAO also requested addi~ional .. evidence of the merger, which the agreement states ocqmed 
through· stock acquisition. 
In response to the AAO's NOID, submits a copy of a written, corporate action, dated 
Jliile 16, 2012. The action purports to remove the petitioner's president as a director and officer of 
the petitioner, and a third company, as of June 21, 2012.1 
The agreement also purports to appoint CEO as sole director of all tbree companies. 
1 According to the U.S. Attorney's Office in Delaware, 2 days before the JW!.e 16, 2012 corporate 
action, the petitioner's president pleaded guilty to visa fraud and money laundering charges, 
. admitting thJlt he submitted false contracts to USCIS on 33 occasions from March 2007 through 
September 2010 to demonstrate available work for noni_nunigran.t beneficiaries of H-lB :visa 
petitions. See "Foreign National Pleads Guilty to Visa .. Fraud," June 14, 2012, available at 
.. http://WWW.justice.gov/usao/de/news/2912/doppalapudi.html (accessed Nov. 27, 2013) .. Federal 
court records show tlt~~ the petitioner's prestdent was sentenced on September 26, 2012 to 16 
months in prison. , See United States v. Doppalapudi, No. 12 .. 00024 (D. Dei. 2012), A copy of 
Q012 federal tax return states that the petitioner's president holds about 12.5 percent of 
stock, with Streamline's CEO owning the remaining shares of the,company. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
The corporate (lCtion identifies its signers as all of the shareholders of 
The agreement is signed by the petitioner's former president and 
whom the action identifies as the president and authorized representative of 
the petitioner, and 
CEO, 
does not provide any further infofination or evidence a,bout or its shareholders. 
Online informa,tion from the Delaware Department of State, Division of Corporations, states that 
was formed on February 16, 2012 and identifies CEO as the COillp(llly's 
registered agent. See "Entity Detl:lil," Del. Dep't of State, Div. of Corps., avai./able at 
https://delecotp.delaware.gov/tin/controller (a,ccessed Nov. 27, 2013). 
In a written statement dated October 10, 2013, CEO states that the petitioner merged 
into Clnd tha~ all of the petitioner's assets, including its "business intangibles, customer 
lists and contracts, all person(ll property within the offices, all human resources including 
employees/professional consultants; 'and all i.ntellectual and . proprietary property," passed to 
Copies of the beneficiary's monthly payroll records from January 2011 through July 
~013 indicate that he worked for the petitioner until December 2012, when he began working for 
Although has not provided information about or additional evidence regarding 
. the disposition of the petitioner's assets to corroborate the claimed merger, the AAO finds that .the 
preponderance ,of the ·evidence establishes that the petitioner merged into effective 
December 1, Z012. 
As indicated above, a successor-in--interest must also·establish the continuing ability of it and the labor 
certification employer to pay the beneficiary's proffered wage from the petition's priority date, 
continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. § 2b4.5(g)(2). 
Evidence 6f ability to pay "shall be in the form of copies of annual reports, federal t<PC returns, or 
audited financ.ial statenierits." !d. 
. . 
Iri the instant case, the proffered wage fot the offered position of softw(lre. engineer stated on the 
labor certification is $80,000 per year. Copies of the petitioner's annual reports, federal tax returns, , , ' 
or audited .financial statements for 2011, the year of the petition's priority date, were unavailable on 
the petition's filing da.te of October 26, 2011. Copies of the petitioner's 2010 federal income t(lx· 
return, the 2010 Internal Revenue Service (IRS) Form W-2 Wage and Tax Statement that it issued to 
the beneficiary, and monthly payroll t~cords of its employment of the beneficiary from January 2011 
through August 2011 accompanied the petition. 
The AAO's NOID, pursuant to the regulation at 8 C.F.R. § 204.5(g)(2), requested copies of the 
petitioner's annual report, federal tax returns, ot audited financial statements for 2011 and. 2012, and 
the same documents of for 2012. In response, submits copies of the 
petitioner's 2011 federal tax return, 2012 federal tax return, and copies of the 
(b)(6)
I. 
-'· NON-PRECEDENT D£CISION 
}>age 5 
beneficiary's monthly payroll records from January 2011 through July 2013, which indicate that he 
worked for the petitioner until December 2012, When he began working for 2 
does not. sl,lbmit co pie~ of the petitioner's 2012 annual report, federal tax retl1m, or 
·audited financial statements a:s the regulation at 8 C.F.R. § 204.5(g)(2) requires and as the AAO 
requested in its NOID. Not does indicate that the -petitioner's :2012 records are 
unavailable or inapplicable. See "Publication 542: Corporations," U.S .. l)ep't of Treasury, internal 
Reven1Je Setv., p, 5, (Mar. 2012), available at http://irs.gov/pub/its-pdf/p542.pdf(acces _sed Nov. 27. 
2013) (unless exempt from ~nGome taxes, all U.S. corporations in existence fot any part of a, tax year 
lnust fil~ an income tax return, even if they did not earn taxable income). · 
In "appropriate c~ses," l)SCIS may co~sider or request additional eviden_ce of a petitioner's eibllity 
to pay the proffered wage, such as copies of payroll records. 8 C.F.R. § 204.5(g)(2). But a petitioner 
may not substitute additional materials for evidence that the regulation at 8 C._F.R. § 204.5(g)(2) 
reqt~ires. Therefore, the copies of the beneficiary's payroll records do not establish the petitioner's 
ability to pay his proffered wage in 201 L. 
In addition, does not submit copies of the beneficiary's 2011 and 201:2 Forms W-2, as the 
AAO's NOID suggested. The AAO considers Forms W-2 more reliable evidence of a beneficiary's 
employment than payroll records because employers must S\lbmit Forms W-2 to the U.S. 
gove1nn1ent subject to penalties for failing to file or reporting incorrect informa_tlon, Se~ U.S. Dep't 
of Treasury, Internal Revenue Se.rv., "General InstrUctions for Forms W-2 and W-3," p, 11, (Mar. 8, 
2013), available at http://WWW.its.gov/pub/its-pdf/iw2w3.pdf (accessed Nov. 27, 2013) .. 
Because bas not provided complete annual reports, federal tax returns, or audited 
financial statements -of the petitioner for each year from the priority date until the merger and has not 
, explained the absence of the documentation, has failed. to demon~trate the continuing 
ability of it and t.he petitioner to pay the beneficiary's proffered wage front the petition's priority date 
onward. 
As indicated above, a successor-in-interest must also demonstrC!-te that it continues to offer the 
beneficiary the job opportunity specified on the , labor certification. Col.lnsel asserts that the 
beneficiary works for in the same position- business analyst (SAP Finance)- as he did 
for the petitjoner. As discussed above, copies of the beneficiary; s payroll records show th;:tt. he has 
worked for since the December 1, 2012 merger: 
The labor certification states different job d1Jties, which involve differe~t technologies, for the offered 
position of software engineer and the beneficiary's current position of business analyst (SAP Finance). 
2 re~ponse to the AAO's NOID included a letter ftom counsel, d.£J.ted October 11, 2013, 
stating that the response cont~ins a copy of the petitioner's "2012 U.S. Corporate Income Tax 
Returns" at Exhibit P. Exhibit P, however, contains only a copy of the petitioner's 2011 fedet(!l tax: 
return. 
(b)(6)
NON-PRECEDENT DECISION 
· Page 6 
For example, the labor certification states that the offered position involves "using various moduJes of 
SAP ancl/or other technologies such as Oracle and Java (J2EE) applications." But the job duties of the 
benefi~iary' s current position, as stated on the labor certification, do not include Oracle and Java (J2EE) 
applications among the "software and tools used." 
has not submitted any documentary evidence that it.intends to employ the beneficiary in t.be 
offered position as the AAO's NOlO requested. Evidence of employment of the 
beneficiary in his Cl.l,rrept position does not establish that intends to employ him in the 
offered position, Therefore, the record does not establi~h tha..t the job opportunity remains the same one 
that the DOL certified. 
For the foregoing reasons, has not demonstrated that it is a successot~in~interest tq the 
petitioner. Because has not established that it is a successor-in-interest to the petitioner, 
Streamline is not an "affect~d party" in this m3;tter. Therefore, pursuant to the regulation at 8 C.F.R. 
§ 103.3(a)(2)(v)(A)(l), the AAO cannot accept its filing. 
Notice of Certification 
) 
Even if _ estabFshed itself as a su'*s~or,-in-interst to the petitioner, the record does not 
demonstrate that USCIS failed to notify the petitioner of the director's certified decision as the 
regulation 8 C.F,R. § 103A(a)(2) requires. The record also does not establish that a violation of the 
regulation at 8 C.F.R . .§ 103.4(a)(2) would merit a remand to the director for issuance 9f a new Notice 
of Certification. 
Aii addressee is·presumed to receive ordinary mail that is properly sent. See Santana Gonzalez v. Att'y 
Gen., 506.F.3d 274, 278 (3d Cir. 2007)? A petitioner can rebut this presumption by submitti~g contrary 
evidence, such as a sworn affidavit from the intended recipient supported by circumstahti'al evidence 
corroborating the cla..jm of non-receipt. /d. at 280. 
· In the instant case, USCIS's file contains a copy of a Notice of Certification, dated October 5, 2012 and 
addressed to the petitioner, with a copy to eounsel. The copy of the notice establishes a presumption that 
the petitioner ,and counsel received the notice that USCIS sent by ordinary mail. The record of 
proceedings does not contain any returned or undeliverable mail, which might indicate that the 
addresses on record at the tiine ofcertification were incorrect. 
submits sworn affidavits from the petitioner's chief executive officer (CEO) aild counsel, 
stating that the petiHoner a,nd counsel did not receive the notice. But does not cite any 
3 The precedent decisions of U.S. Courts of Appeal with jurisdiction over the area of intended 
employment bind the AAO in visa petition proceedings. See, e.g., Matter of Anselmo, 20 I&N Dec. 
25, 31 (BJA l989). ln the inst(lnt case, the area of intended employment, as stated on the labor 
certification, is Newark, Delaware, which falls under the jurisdiction of the U.S Court of Appeals for 
the Third Circuit. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 , __ 
circumstantial evidence supporting its claim of non-r~<;;eipt as the Third Circuit's holding in Santana 
Gonzalez requires. · 
Moreover, even if USCIS had failed to fulfill the reglll~li.on at 8 C.F.R. § 103.4(a)(2), proceedings may 
be invalidated only where the regulation provides a benefit to the alien and the viol~tjon prejudiced an 
interest that the regulation was designed to protect. Calia-Collado v. Att y Gerz. of US., 663 F.:3d 680, 
684 (3d Cir. 2011) (citingMattet ofGarcia-Flotes, 17 I&N Pee. 325 (BIA 1980)). 
Here; the Noti~ of Certification indicated the director's approval of the petition. has not 
established that its claimed inability to brief the und~rlying accreditation issue on certification 
prejudiced the petitioner. Assuming that established itself as a successor-in-interest to the 
petitioner, (,llso has not explained why its ability to submit a motion to reopen and/ot 
· reconsider the AA.O's decision on certification would not be an appropriate remedy for a violation of 8 
C.F.R. § 103.4(a)(2). 
Indeed, since the AAo issued its decision on certi.tication. more than 9 months ago, has not 
addressed the underlying accreditation issue, despite oppormnit.ies to submit a brief and/or evidence 
with it~ "appeai" and with its response to the AAO's NOID. As discussed in the NOID, S~reamline 
indicated that it would brief the issue within 30 days of flling its "appeal." However, the AAO received i 
no brief or additional evidence before it issued its NOll). Strea.IIlline has not taken advantage of prior 
opportunities to be heard. The record of proceeding fails to establish a beneficial re()Son to r~mand this 
matter for recertification, further delaying the~e proceedings and burdening administrative resources. 
Conclusion 
In Sllmirtaty, the AAO finds that has not established itself as a successor-in~intereSt to the 
is not an affected party in these proceedings , As petitioner. Th~rl):fore, 
"appeal" was improperly 
§ 103.3(a)(2)(v)(A)(l). 
filed, the MO 0111$1 reject it pursuant to the regulation at 8 C.F.R. 
ORDER: The filing is rejected.