remanded EB-2 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 11973569 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 22, 2022 
Form I-140, Immigrant Petition for an Advanced Degree Professional 
The Petitioner, an information technology company, seeks to employ the Beneficiary as a project 
manager (IT). It requested classification of the Beneficiary as a member of the professions holding an 
advanced degree under the second preference immigrant category. Immigration and Nationality Act (the 
Act) section 203(b )(2), 8 U. S.C. § 1153 (b )(2). This employment-based "EB-2" immigrant classification 
allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent 
resident status. 
The petition was initially approved. However, upon further review , the Director of the Nebraska 
Service Center revoked the approval. The Director determined that certain language in H.14 of the 
labor certification exceeded the "Kellogg language" and altered the minimum requirements of the 
labor certification and could potentially allow a beneficiary to qualify for the job offered with less than 
a master's degree or a bachelor's degree and five years of postgraduate experience in the specialty, 
and thus did not support the requested classification of advanced degree professional. 1 
On appeal, the Petitioner provides evidence and a brief asserting that the minimum requirements 
specified on its labor certification are consistent with the petition's classification request of advanced 
degree professional. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361 . Upon de nova review of the evidence and arguments made 
on appeal, we conclude that the Petitioner has overcome the basis for the revocation. However , the 
1 Theregulationat20 C.F.R. § 656.l 7(h)(4)(ii)states : 
If the alien beneficiary already is employed by the employer , and the alien does not meet the primary 
job requirements and only potentially qualifies for the job by virtue of the employer 's alternative 
requirements, certification will be denied unless the application states that any suitable combination of 
education, training, or experience is acceptable . 
This regulation was intended to incorporate the Board of Alien Labor Certification Appeals (BALCA) ruling in Francis 
Kellogg , 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 1998) (en bane). The statement on the laborcertificationthatan 
employer will accept applicants with "any suitable combination of education , trainingorexperience"is commonly referred 
to as "Kellogg language ." 
record as presently constituted does not support the petition's approval. Therefore, we will withdraw 
the Director's decision and remand the matter for entry of a new decision consistent with the analysis 
below. 
I. LEGAL FRAMEWORK 
Immigration as an advanced degree professional generally follows a three-step process. First, a 
prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: (1) 
there are insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) 
employment of a noncitizen in the position would not harm wages and working conditions of U.S. 
workers with similar jobs. See section 212(a)(5) of the Act, 8 U.S.C. § l 182(a)(5). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. 
Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
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 lawful 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, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained 
and unrebutted record at the time of the notice's issuance would have warranted the petition's denial 
Matter of Es time, 19 I&N Dec. 450,451 (BIA 1987). If a NOIR response does not rebut or resolve 
alleged revocation grounds, USCIS properly revokes a petition's approval. Id. at 451-52. 
II. SUCCESSOR-IN-INTEREST 
The record shows that after this petition was filed and approved in 2016, the Petitioner was acquired 
by a French entity in 2018. In 2019, a newly fom1ed entity - 1- filed an amended 
petition seeking to employ the Beneficiary as the Petitioner's successor-in-interest. 2 
After we initially reviewed the record on appeal, we issued a notice of intent to reject, informing the 
Petitioner that its acquisition, which preceded the filing date of this appeal, may adversely impact the 
validity of the instant petition. However, based on the response submitted, we will remand the matter 
to the Director for further consideration of the successorship issue.I I must establish that it 
is the valid successor-in-interest to the entity that filed the labor certification in order to continue to 
rely on the underlying labor certification in this matter. 
A labor certification remains valid only for '"the particular job opportunity," the noncitizen, and the 
geographical area of intended employment stated on it. 20 C.F.R. § 656.30( c )(2); see also section 
204(a)(l )(F) of the Act (stating that the Petitioner must "desir[ e] and intend[] to employ [a designated 
2 Thereceiptnumberofthe amended Form 1-140 is ____ 
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noncitizen] within the United States"). Thus, if the Petitioner no longer does business or no longer 
intends to employ the Beneficiary in the offered position, the petition may not be approved. However, 
the Petitioner may still rely on the petition and the accompanying certification if evidence shows that 
a "successor-in-interest" of the Petitioner- a subsequent owner of the Petitioner's business- intends 
to employ the Beneficiary in the offered position. See Matter of Dial Auto Repair Shop, Inc., 19 I&N 
Dec. 481 (Comm'r 1986). 
For immigration purposes, a successor-in-interest must demonstrate its acquisition of assets and 
liabilities needed to carry on a predecessor's business or a discrete part of it. See id. at 482-83; see 
also Memorandum from Donald Neufeld, USCIS Acting Assoc. Dir., Domestic Ops., Successor-in­
Interest Determinations in Adjudications of Form 1-140 Petitions, HQ 70/6.2 AD 09-37, 8 (Aug. 6, 
2009) (stating that "[t]he evidence provided must show that ... the successor acquired the essential 
rights and obligations necessary to carry on the business in the same manner as the predecessor"). A 
successor-in-interest must: 1) fully describe and document the transaction(s) leading to its acquisition 
of the employer's business; 2) establish that, exceptfortheprospectiveemployer, the job offer remains 
the same as stated on the accompanying labor certification; and 3) demonstrate eligibility for the 
requested benefit, including the abilities of the successor and the labor certification employer to 
continuously pay the proffered wage of an offered position from a petition's priority date onward. Id. 
In response to our notice of intent to reject the appeal, the Petitioner submitted an "Agreement and 
Plan of Merger," outlining the company's merger with a wholly owned subsidiary of the French entity 
that acquired the Petitioner. The document indicates that upon completion of the merger, the 
subsidiary immediately ceased to exist, and the Petitioner survived the transaction as the wholly owned 
subsidiary of the French company. In sum, the agreement and plan of merger document discussed a 
business transaction that involved the Petitioner, its French parent entity, and the French entity's 
wholly owned subsidiary that merged with the Petitioner. Because! I the purported 
successor, was not a party to the merger that was detailed in the agreement and plan of merger, that 
document does not establish the claimed successorship between the Petitioner andl I We 
further note that online government records indicate that the purported successor did not exist at the 
time of the merger, and, therefore, does not appear to be the resulting formed successor. See Mich. 
Dep 't of Licensing & Regulatory Affairs, "Corporations Online Filing System," 
https://cofs.lara.state.mi.us/SearchApi/Search/Search (last visited September 6, 2022). 
Further, section 10. 6 of the agreement and plan of merger states that the Petitioner's acquisition was 
governed by Delaware state law. Under Delaware law, a merger structured like the one involving the 
Petitioner - a "reverse triangular merger" - does not transfer assets or liabilities from an acquired 
company. Mesa Scale Diagnostics, LLCv. Roche Diagnostics, GmbH, 62A.3d62, 88 (Del. Ch. 2013) 
(upholding "the general understanding that a reverse triangular merger is not an assignment by 
operation of law"). For this additional reason, the agreement and plan of merger document does not 
establish the purported successorship between the Petitioner and I I 
The Petitioner also submitted an "Assignment Agreement," showing that its assets and liabilities were 
transferred to the purp01ied successor in June 2019. However, because the record indicates that the 
Petitioner's business involved providing integrated IT and "knowledge process" services to corporate 
clients in addition to client service agreements, the Petitioner's business likely required workers with 
IT and business knowledge to service the company's clients. See Neufeld Memo, supra, at 8 (requiring 
a successor to show that it "acquired the essential rights and obligations necessary to carry on the 
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business in the same manner as the predecessor"). Although the Petitioner claims that the assignment 
agreement shows "the transfer of assets, liabilities, obligations, and employees" to the purported 
successor, the agreement does not support this claim as it does not specify the Petitioner's assignment 
of workers to its purported successor. (Emphasis added). Rather, it specifies only the Petitioner's 
assignment of obligations, rights, and interests in its "service agreements and all Statements of Work 
and other agreements under the service agreements." 
Lastly, the record includes a copy of a June 2019 approval notice of a "blanket L" nonimmigrant visa 
petition. See 8 C.F.R. § 214.2(1)(4) (allowing eligible petitioners to obtain approvals of themselves 
and their parents, branches, subsidiaries, and affiliates as "qualifying organizations" to expedite 
issuances of L-1 visas to their employees). Although the approval notice indicates that USC IS found 
the Petitioner andl I to be wholly owned subsidiaries of the French parent company, the 
approved blanket notice does not indicate whether the purported successor acquired the rights and 
obligations needed to carry on the Petitioner's business to meet the definition of a successor-in­
interest. 
In light of the above, the record does not currently demonstratethatl I acquired all the assets 
and liabilities needed to carry on the Petitioner's business. The Director may wish to request further 
evidence related to this issue on remand and provide the Petitioner an opportunity to respond. 
III. CONCLUSION 
Because the Petitioner was not fully informed of the above-described evidentiary deficiencies, we will 
remand the matter. On remand, the Director should issue a new NOIR that will explain and allow 1he 
Petitioner to an opp01iunity to address the evidentiary deficiencies and offer evidence in supp01i of 
the petition. 8 C.F.R. § 205.2(a). 
If supported by the record, the new NOIR may include any additional, potential revocation grounds. 
The Director, however, must provide the Petitioner with a reasonable opportunity to respond to all 
issues raised on remand. Upon receipt of a timely response, the Director should review the entire 
record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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