dismissed EB-3 Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 17, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a contractor, seeks to employ the Beneficiary as a carpenter-supervisor. 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 two years of 
training or experience. 
The Director, Texas Service Center, denied the petition. The Director determined that the record did 
not establish the Petitioner's ability to pay the proffered wage to the Beneficiary from the priority 
date of the visa petition forward. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director relied on 
an incorrect priority date in determining its ability to pay. The Petitioner further maintains that its 
ability to pay should be based on its gross income, not the net income and net current assets reported 
in its tax returns. Upon de novo review, we will dismiss the appeal. 
I. PRIORITY DATE 
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, the employer files a Form I-140, Immigrant Petition for 
Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. If the Form I-140 is approved, the foreign national then applies 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 Form I-140 (visa petition) is accompanied by an ETA Form 9089, 
Application for Permanent Employment Certification (labor certification), approved by the DOL. 1 
1 See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i); see also 8 C.F.R. § 204.5(a)(2). 
(b)(6)
Matter ofT- LLC 
The priority date of a petition is the date the DOL accepted the labor certification for processing. 
See 8 C.F.R . § 204.5(d) . A petitioner must, therefore, establish the elements for the approval of a visa 
petition as of the date on which the underlying labor certification is filed with DOL. A petition may not 
be approved if the beneficiary was not qualified at the priority date, but expects to become eligible at a 
subsequent time. Matter ~fKatigbak, 14l& N Dec. 45,49 (Comm'r 1971). 
At the time it filed the labor certification, the Petitioner indicated (in Part A.) that it wished to use the 
April 30, 2001, filing date of a previously filed _Form ETA 750, Application for Alien Employment 
Certification , filed by While the record reflects DOL approval of the 
application , the cover page of the labor certification states the priority date as February 21, 20 13, and 
the labor certification itself (on page 9) reflects a filing date of April 30, 2001. 
We notified the Petitioner of this inconsistency in a notice of intent to dismiss (NOID) and, further, 
that we had contacted DOL to seek its assistance in the matter, becau se we did not find the record to 
demonstrat e that it was eligibl e to use the April 30, 2001 , priorit y date. See section 204(b) of the 
Act , 8 U.S.C. § 1154(b) (requiring USCIS to consult with DOL in the adjudication of emplo yment­
based imm igrant visa petition s). In our referral , we advised DOL that, based on our review of the 
record, the Petitioner did not appear to have met the requirements of the regulation at 20 C.F.R. 
§ 656.17( d) for two reasons: 1) that the job opportunit y in the ETA Form 9089 was not identical to 
the job opportunity in the Form ETA 750 because they were offered by two different employers, and 
2) that the job order supportin g the Form ETA 750 had already been placed.3 
As of this date, the above issues have not been resolved with DOL. Therefore, as we indicated in our 
NOID, we will consider the priority date of the instant visa petition to be April 30, 2001 , the filing date 
reflected on the ETA Form 9089. Accordingly, the Petitioner must establish that, as of April 30, 200 1, 
it had met all the requirements for the approval of the visa petition. 
II. PETITIONE R AS SUCCESSOR-IN-INTEREST 
A petitioner , under certain circum stances, may rely on a labor certification approved for another 
busine ss entity if the petition er is a s ucce ssor-in-intere st to the original labor certificati on employer. 
The gener ally accepted definition of a successor-in-interest is: "One who follow s another in 
ownership or control of prop erty. A succes sor in interest retains the same rights as the original 
2 The regulation at 20 C.F.R. § 656. 17(d) stipulate s the c ircumstances under which an employer may recapture the 
priori ty date of a Form ETA 750 filed before March 28, 2005 . Specifically, in order t o recapture the filing date of a 
previously filed Form ETA 750, the o ffered job must be identical and a job order must not have been placed in support 
of the earl ier filing. 
3 While the record does not include a copy of the job order, the Form ETA 750 filed by was 
approv ed by the DOL on May 30, 2006. Because a job order must be placed before a Form ETA 750 can be approved, 
the job order in this case must have been placed before May 30, 2006, which is clearly before the February 21 , 201 3 
request to recapt ure the filing date. We note that there is no record in USCIS databases that . filed 
a Form l-140 on the Beneficiary's behalf using the approved Form ETA 750. The reco rd offers no expla nation as to why 
that company did not proceed with the emp loyment-ba sed immigrant visa proce ss at that time. 
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Matter ofT- LLC 
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 l&N Dec. 481 (Comm 'r 1986) 
(Dial Auto), a binding, U.S . Immigration and Naturalization Service (INS) decision, designated as a 
precedent by the INS Commis sioner in 1986, outlines the circumstances under 
which a successor-in­
interest may be established. 4 
Considering Dial Auto and the generally accepted definition of successor-in-interest, a petitioner 
may establish a valid successor relationship for immigration purposes if it satisfies three conditions. 
First, the petitioning successor must fully describe and document the transaction transferring 
ownership of all, or a relevant part of, the beneficiary's predecessor employer. Second, the 
petitioning successor must demonstrate that the job opportunity is the same as originally offered on 
the labor certification. Third , the petitioning successor must prove by a preponderance of the 
evidence that it is eligible for the immigrant visa in all respects. 
On appeal, the Petitioner asserts that, if not the same business as it should be 
viewed as a restructured with one owner rather than two. In a statement, the 
Petitioner 's owner asserts that, in his current business, "all business practices, elements, instruments , 
and executors remained the same which includes but is not limited to the same specific deck project 
work type; leads generated for potential sales of said specific work type; execution of sales for said 
specific work type; skilled labor to execute and supervise said specific work type; and completion of 
said specific work type." Accordingly, we will consider whether the record demonstrate s the 
Petitioner as a successor-in-interest to and, therefore, as eligible to use the 
priority date established by the filing of the Form ETA 750. 
With respect to corporations , a successor is generally created when one corporation is vested with 
the rights and obligations of an earlier corporation through amalgamation , consolidation , or other 
assumption of interests.5 ld. at 1569 (defining "successor"). When considering other business 
organizations , such as partnerships or sole proprietorships, even a partial change in ownership may 
require the petitioner to establish that it is a true successor-in-intere st to the employer identified in 
the labor certification application .6 
4 The regulation at 8 C.F.R. § 103.3(c) provide s that precedent decisions are binding on all immigration officers in the 
administration of the Act. 
5 Merger and acquisition transaction s, in which the interests of two or more corporations become unified, may be 
arranged into four general groups . The fir st group includ es "consolidations" that occur when two or more corporations 
are united to create one new corporation . The second group include s "mergers ," consisting of a transaction in which one 
of the con stituent companie s remains in being, absorbin g the other constituent corpor ation . The third type of 
combination includes "reorganization s" that occur when the new corporation is the reincarnation or reorganization of one 
previously exi sting. The fourth group includes tran saction s in which a corporation , althou gh continuin g to exist as a 
"shell" legal entit y, is in fact merged into another through the acqui sition of its assets and business oper ations. 19 Am. 
Jur. 2d Corporati ons § 2165 (20 I 0). 
6 For example , unlike a corporation with its own distinct legal identity, if a general partnership adds a pattner after the 
filing of a labor certific ation applic ation , a Form 1-140 tiled by what is essentiall y a new partner ship must contain 
evidence that this partnership is a success or-in-interest to the filer of the labor certification application . See Matter of 
United Investment Group, 19 l&N Dec. 248 (Comm ' r 1984). Similarl y, if the emplo yer identified in a labor certification 
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Matter ofT- LLC 
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. 
However, a mere transfer of assets, even one that takes up a predecessor 's business activities, does 
not necessarily create a successor-in-interest. 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 agree to the transfer and assumption of the essential rights and obligations of the 
predecessor necessary to carry on the business.7 See generally 19 Am. Jur. 2d Corporations§ 2170 
(2010). 
Matter of Dial Auto does not stand 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 the predecessor, but also the essential rights and obligations of the predecessor necessary 
to carry on the business. To ensure that the job opportunity remains the same as originally certified, 
the successor must continue to operate the same type of business as the predecessor, in the same 
metropolitan statistical area and the essential business functions must remain substantially the same 
as before the ownership transfer. Dial Auto, at 482. 
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. The petitioning successor 
must prove its predecessor's ability to pay the proffered wage as of the priority date and until the 
date of transfer of ownership to the successor. In addition, a petitioner must establish its successor's 
ability to pay the proffered wage from the date of transfer of ownership forward. 8 C.F.R. 
§ 204.5(g)(2); see also Dial Auto, at 482. 
Here, the record contains no evidence that establishes the Petitioner as a restructured 
involving the same business practices, elements, instruments, and executors. There 
is no documentation of the transfer of the ownership of to the Petitioner. 
Neither is there any evidence indicating what assets and liabilities the Petitioner assumed as of the 
date on which it claims to have succeeded 
Moreover, the Petitioner's business was formed on March 12, 2007, a date on which records 
maintained by the Maryland Department of Assessments and Taxation Business Services reflect that 
application is a sole proprietorship, and the petitioner identified in the Form 1-140 is a business organization , such as a 
corporation which happens to be solely owned by the individual who filed the labor certification application, the 
petitioner must nevertheless establish that it is a bonafide successor-in-interest. 
7 The mere assumption of immigration obligations, or the transfer of immigration benefits derived from approved or 
pending immigration petitions or applications , wi II 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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(b)(6)
Matter ofT- LLC 
was still incorporated in Maryland. 8 For this reason, as well, the evidence of 
record does not support the Petitioner ' s claim to be a successor-in-interest to 
Therefore , the record does not satisfy the first of the conditions established by Dial Auto. 
Further, the record, for the reasons discussed below, does not establish either or 
the Petitioner ' s ability to pay during the relevant periods and, therefore, does not establish that the 
Petitioner is eligible for the immigrant visa in all respects. Accordingly, the record does not 
demonstrate the Petitioner as a successor-in-interest to 
As the record does not establish the Petitioner as a successor business to it 
may not rely on the evidence of to demonstrate its eligibility for the 
immigrant visa from the 2001 priority date. 
III. ABILITY TO PAY THE PROFFERED WAGE 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1tton 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 its 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 ofGreat Wall, 16 I&N Dec. 142 (Acting Reg' ! 
Comm ' r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS 
requires a petitioner to demonstrate financial resources sufficient to pay the beneficiary the proffered 
wage throughout the relevant period, although the totality of the circumstances affecting the petitioning 
business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 
J&N Dec. 612 (Reg'! Comm'r 1967). 
Here, as previously indicated, the priority date of the visa petition is April 30, 2001, and the labor 
certification (Part G.l.) reflects that the proffered wage is $22 per hour or $45,760 per year. 
Therefore , the Petitioner must establish a continuing ability to pay the Beneficiary the annual wage 
of$45,760 from April30 , 2001, forward. 
8 Maryland records indicate that 
return in 2008 . 
' 
was forfeited on October 2, 2009, because it did not file a property 
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Matter ofT- LLC 
In his denial of the visa petition , the Director concluded that the record did not establish the 
Petitioner's ability to pay 
the proffered wage in the years 2001 through 2005, 2007, 2008, and 2012. 
In his decision , the Director noted that the Petitioner, an S corporation, had originally been 
structured as a partnership , from 2001 through 2007. Consequently, he 
considered both the Petitioner 's and financial evidence before determining that 
the Petitioner had not established its ability to pay 
the proffered wage in this matter. 
However, the record does not establish the Petitioner and as the same business 
entity, and offers no evidence that the Petitioner is the result of the reorganization, restructuring or 
renaming of Instead, as discussed above, the two companies' corporate tax 
returns establish them as separate, independent business entities. The Forms 1065, U.S. Returns of 
Partnership Income, filed by reflect a federal employer identification number 
(FEIN) of while the Petitioner's Forms 1120S, U.S. Income Tax Returns for an S 
Corporation , report its FEIN as 
Although the 
record shows that the Petitioner's owner was previously a co-owner of 
his ownership of both businesses does not allow us to consider 
financial resources in determining the Petitioner 's ability to pay the proffered wage. A corporation 
is a separate and distinct legal entity from its owners and shareholders. As a result, the assets of its 
shareholders or of other enterprises or corporations cannot be considered in determining the 
petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, 
Ltd., 17 I&N Dec. 530 (Comm'r 1980). In considering this issue, the court in Sitar v. Ashcroft, 2003 
WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. 
§ 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no 
legal obligation to pay the wage." 
In that the Petitioner, founded in 2007, cannot rely on the financial resources of 
in this matter, the record of proceedings does not contain the regulatory prescribed evidence of 
its ability to pay the proffered wage from the April 30, 2001, priority date in all relevant years. 
The Petitioner on appeal also asserts that the Director erred as a matter of law in requiring it to 
demonstrate its ability to pay the proffered wage prior to the September 5, 2013, approval of the 
·labor certification by DOL. It further contends that the Director should have relied on its gross 
income in determining it ability to pay the proffered wage. However, the Petitioner provides no 
legal authority in support of these claims. 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 
Soffici, 22 l&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTrea sure Craft ofCal~fornia, 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, at 
369. 
In asserting that it should not be required to establish its ability to pay the proffered wage prior to the 
date on which the labor certification was approved, the Petitioner ignores the regulation at 8 C.F.R. 
§ 204.5(g)(2), which, as previously indicated, requires that a petitioner's ability to pay be established 
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Matter ofT- LLC 
as of a visa petition's priority date. Here, the visa petition's priority date is April 30, 2001, the date 
requested by the Petitioner, and the filing date listed on page 9 of the ETA Form 9089. 
We also find the Petitioner's reliance on gross income as a measure of its ability to pay to be 
misplaced. Our use of federal income tax returns as a basis for determining a petitioner's ability to 
pay the proffered wage is well-established by judicial precedent.9 In K. C.P. Food Co., Inc. v. Sava, 
623 F. Supp. 1080 (S.D.N.Y. 1985), the court held that the former INS, now USCIS, had properly 
relied on a petitioner's net income figure, as stated on the petitioner's corporate income tax returns, 
rather than the petitioner's gross income. The court specifically rejected the argument that USCIS 
should have considered income before expenses were paid rather than net income. See Taco 
Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), affd, No. 10-1517 (6th Cir. filed 
Nov. 10, 2011) (gross profits overstate an employer's ability to pay because it ignores other 
necessary expenses). 
For the above stated reasons, the record does not establish the Petitioner's ability to pay the 
proffered wage from the April 30, 200 I, priority date forward. Accordingly, the appeal must be 
dismissed. 
IV. CONCLUSION 
A petitioner must establish the elements for the approval of a petition as of that petition's priority 
date. A petition may not be approved if the beneficiary was not qualified as of the petition's priority 
date, but expects to become eligible at a subsequent time. Katigbak, at 49. Here, as previously 
discussed, the record does not demonstrate the Petitioner's ability to pay the proffered wage as of the 
April 30, 200 I, priority date. 
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 ofOtiende, 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 ofT- LLC, ID# 15277 (AAO June 17, 2016) 
9 See Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii. 
Ltd v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. ill. 
. 1982), affd, 703 F.2d 571 (7th Cir. 1983). 
7