dismissed EB-3 Case: Clothing Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 11537095 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 26, 2022 
The Petitioner, a clothing manufacturer, seeks to employ the Beneficiary as a sewing machine 
operator. It requests classification of the Beneficiary as a skilled worker under the third preference 
employment-based immigrant visa category . Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(i), 8 U.S.C. § l 153(b)(3)(A)(i). This immigrant visa category allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires at least two years of education, training, or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish its ability to pay the proffered wage; that the Beneficiary possessed the required experience 
for the offered position; that there existed a bona fide job opportunity for the Beneficiary with the 
Petitioner; and that the Petitioner is still doing business or has a successor-in-interest. The Director 
also made a finding that the Petitioner willfully misrepresented a material fact relating to the 
Beneficiary's employment history. 1 
The Petitioner bears the burden of establishing eligibility for the requested immigration benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will reject the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker usually follows a three-step process. First , the prospective employer 
must obtain a labor certification approval from the U.S. Department of Labor (DOL) to demonstrate 
that there are not sufficient U.S. workers who are able , willing, qualified, and available for the offered 
position . Section 212(a)(5) of the Act, 8 U.S .C. § l 182(a)(5). 
Second, the employer must submit the approved labor certification with an immigrant visa petition to 
U.S . Citizenship and Immigration Services (USCIS) . Section 204 of the Act, 8 U .S.C. § 1154. The 
immigrant visa petition must establish that the foreign worker qualifies for the offered position , that 
the foreign worker and the offered position are eligible for the requested immigrant visa category , and 
that the employer has the ability to pay the proffered wage . See 8 C.F.R. § 204.5 . These requirements 
1 We rejected the subsequent appeal for being filed late but reopened the matter after counsel submitted evidence 
establishing that the appeal was timely filed. 
must be satisfied by the priority date of the immigrant visa petition. See 8 C.F.R. § 204.5(g)(2); Matter 
of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977). In this case, the priority date 
is October 6, 2003. 2 
Finally, ifUSCIS approves the immigrant visa petition, the foreign worker may apply for an immigrant 
visa abroad or, if eligible, for adjustment of status in the United States. Section 245 of the Act, 8 
U.S.C. § 1255. 
II. SUCCESSOR-IN-INTEREST 
An appeal may only be filed by an affected party. 8 C.F.R. § 103.3(a)(2)(i). An affected party is a 
party with standing in a proceeding, such as an applicant or petitioner. See 8 C.F.R. 
§ 103.3(a)(l)(iii)(B). If an appeal is filed by a party that does not have standing, the appeal must be 
rejected as improperly filed. 8 C.F.R. § 103.3(a)(2)(v). 
When, as in this case, an appeal is filed by a different legal entity than the employer that filed the labor 
certification and the petition, then the new entity that filed the appeal must establish that it is a 
successor-in-interest to the petitioner. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 
(Comm'r 1986). In Matter of Dial Auto, the Commissioner found that the petitioner did not adequately 
support its claim that it had assumed the predecessor company's rights, duties, and obligations in order 
to establish eligibility as a successor-in-interest. The successor entity has the burden to fully describe 
and document the nature of the transfer ofrights, obligations, and ownership of the prior entity. 3 
Here, the petition was filed by I (Federal Employer Identification Number 
___ and the appeal was filed byl I (Federal Employer 
Identification Number I 1). During the adjudication of the petition, the Director issued a 
request for evidence (RFE) and two notices of intent to deny (NOID). The RFE and NOIDs each 
raised several issues, including the fact that the Petitioner was no longer in business. In each notice, 
the Director requested documentary evidence that I I (Appellant) 
was a successor-in-interest tol I (Petitioner). 
In response to the Director's requests, the Appellant submitted documents that show that the Appellant 
was incorporated during the adjudication of the petition, that the Appellant is owned by the same 
individual who owned the Petitioner, that the Appellant's address is the same as the Petitioner's former 
address, that the Appellant and the Petitioner are in the same business, and that the Beneficiary was 
employed by both the Appellant and the Petitioner. However, we agree with the Director that this 
information was not sufficient to "fully describe and document the nature of the transfer of rights, 
obligations, and ownership of the prior entity" under Matter of Dial Auto and the Neufeld 
Memorandum. 
2 For petitions that require a labor certification, the priority date is the date on which the DOL accepted the labor 
certification application for processing. See 8 C.F.R. § 204.S(d). 
3 Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, HQ 70/6.2, Successor­
in-Interest Determinations in Adjudication of Form 1-140 Petitions; Adjudicator's Field Manual (AFM) Update to Chapter 
22.2(b)(5) (AD09-37) (Aug. 6, 2009), http://www.uscis.gov/legal-resources/policy-memoranda (Neufeld Memorandum). 
2 
In the brief submitted in response to the second NOID, Appellant's counsel stated that the Appellant 
performed a "takeover of business assets. Even though there was no formal name change registration 
of the existing entity, there certainly took places [sic] several facts based upon [the] takeover of [ the 
Petitioner] by [the Appellant]." The brief also stated that "[i]t is highly presumable that the owner 
was trying to utilize the old entity of [the Petitioner] while expanding among the customers and 
suppliers before earning firm credit level of [the Appellant]. It would make the two entities overlap 
in existence for some period of time." Assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980)). Counsel's statements must be substantiated in the record with independent 
evidence, which may include affidavits and declarations. 
On appeal, Appellant's counsel again claims that the Appellant "has transferred corporate assets of 
business premises, employees and management from the old company to [the] new company." 
However, there is no documentation of this transfer such as a merger agreement or a purchase 
agreement for all or substantially all of the Petitioner's assets. After reviewing the appeal, we issued 
a notice of intent to reject the appeal, again informing the Appellant that it must establish that it is a 
successor-in-interest to the Petitioner in order to be an affected party in this proceeding. 
The brief submitted in response to our notice of intent to reject states that the Petitioner and the 
Appellant had the same owner, the same address, made the same products, used the same equipment, 
and had the same employees. 4 The brief states that the worker's compensation account changed from 
the Petitioner to the Appellant in 2012, and the Appellant's 2010 tax return had an entry for 
depreciation which shows the company overtook equipment from the Petitioner. The brief also states 
that the companies did not document the transfer because they were small businesses owned by the 
same person. The brief claims that Matter of Dial Auto and the Neufeld Memorandum apply to large 
corporations that have the resources to properly document their transactions, not small businesses like 
the Appellant and the Petitioner. 
The notice of intent to reject response contains a letter from the Appellant's new president. The letter 
states that the Petitioner and the Appellant overlapped for a period while the operations of the 
Petitioner were winding down. The response also contains: 
• The Appellant's 2010 tax return. 
• The Petitioner's 2010 lease agreement. 
• The Petitioner's Worker's Compensation and Employers Liability Policy for 2010-2011 and 
2011-2012. 
• A copy of the Appellant's Worker's Compensation policy from 2012-2013 as evidence that 
the Petitioner and the Appellant had the same address and type of business. 
• A statement from I attesting that he has been employed as a manager with the 
Petitioner since 2006 and that the Beneficiary was an experienced employee when he joined 
the company. The document states that the Petitioner did not have a lot of funds and was 
therefore unable to train an inexperienced employee for the Beneficiary's position. The 
statement also claims that the Petitioner transitioned into the Appellant. 
• I Forms W-2, showing his employment by the Petitioner in 2006 and 2009, 
4 As previously noted, assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 l&N Dec. at 534 n.2. 
3 
and the Appellant in 2016. 
• The Petitioner's 2005 corporate tax return. 
• The Appellant's state annual reports for 2010-2014, showing that the Petitioner and the 
Appellant had the same owner. 
The Appellant has established that the Petitioner and the Appellant were owned by the same person, 
operated at the same address, and engaged in the same type of business. In addition, it appears that 
more than one employee worked for the Petitioner and then the Appellant. However, the evidence in 
the record is not consistent (for example, regarding the date that the Appellant allegedly took over 
from the Petitioner) 5 and is not sufficient to establish that the Appellant acquired all or substantially 
all of the Petitioner's business. The fact remains that the Petitioner and the Appellant were separate 
corporate entities and the record does not contain sufficient evidence to establish that there was a 
transaction that resulted in the Appellant acquiring all or substantially all of the Petitioner's business. 
The successor-in-interest issue has been raised with the Appellant multiple times. We have requested 
a detailed explanation and documentation of the claimed successor-in-interest relationship. For the 
reasons explained in the preceding paragraphs, the Appellant has not met its burden. Therefore, the 
appeal must be rejected as improperly filed under 8 C.F.R. § 103.3(a)(2)(v). 6 
III. CONCLUSION 
The appeal must be rejected because evidence in the record does not establish that it was filed by an 
affected party. 
ORDER: The appeal is rejected. 
5 The Appellant must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
6 Tfwe did not reject this appeal, we would have dismissed it on other grounds. We agree with the Director's conclusion 
that the evidence in the record does not establish (a) the Petitioner's continuing ability to pay the proffered wage from the 
priority date; and (b) that the Beneficiary possessed the required experience for the offered position as set forth on the 
labor certification. We also agree with the Director's finding that the Petitioner and the Beneficiary willfully 
misrepresented a material fact regarding the Beneficiary's claimed employment experience. Since the identified basis for 
rejection is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve these issues. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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