dismissed EB-3 Case: Culinary Arts

PUBLIC COPY 
U.S. Department of Eiomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC-03-2 16-5 1586 Office: CALIFORNIA SERVICE CENTER Date: a 2 9 2006 
In re: Petitioner: 
Beneficiary: 
Petition: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~lobe3 P. Wiemann, Chief 
Administrative Appeals Office 
WAC-03-2 16-5 1586 
Page 2 
DISCUSSION: The Director, California Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a restaurant and seeks to employ the beneficiary permanently in the United States as cook. 
As set forth in the director's April 29, 2005, denial, the case was denied based on the petitioner's failure to 
demonstrate that it was the successor-in-interest to the petitioner listed on the labor certification. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal.' 
The record shows that the appeal is timely filed. The procedural history in this case is documented by the 
record and incorporated into the decision. Further elaboration of the procedural history will be made only as 
necessary. 
The petitioner has filed to obtain permanent residence and classify the beneficiary as a slulled worker. Section 
203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 153(b)(3)(A)(i), provides for 
the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United States. 
The petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 CFR 5 204.5(d). Therefore, the petitioner must establish that the job offer 
was realistic as of the priority date, and that the offer remained realistic for each year thereafter, until the 
beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential 
element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. 
Comm. 1977). See also 8 C.F.R. 9 204.5(g)(2). 
The regulation 8 C.F.R. tj 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition 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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
Statutory authority requires that the 1-140 Petition for a skilled worker be filed with Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor (DOL). In the case at 
1 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
WAC-03-2 16-5 1586 
Page 3 
hand, however, the petitioner filed the 1-140 on July 21, 2003, without an approved labor certification. 
submitted an uncertified copy of ETA 750A with the petitioner listed as 
256 Carousel Mall, San Bernardino, CA 92401. 
On May 3, 2004, the Service Center issued a Request for Additional Evidence ("RFE") for the petitioner to 
submit a certified labor certification, or to explain how the certified ETA 750 was lost; to submit evidence to 
show that the beneficiary was qualified for the position offered; to submit information and photos related to 
the petitioner's business; and to submit evidence regarding the petitioner's ability to pay including tax returns, 
and Forms DE-6, Quarterly Wage Reports filed with the state Employment Development Department. 
In response, the petitioner submitted an October 27, 2000 letter fiom the Department of Labor written to a 
prior attorney regarding the beneficiary's certified ETA 750 with an employer, New China Express. The 
letter provided: "this letter, in lieu of the actual certification, may be taken or mailed to the INS (the 
predecessor to U.S. Citizenship and Immigration Services) along with the appropriate forms and fee. The 
petitioner additionally submitted a letter to document the beneficiary's experience with a prior employer; an 
unaudited financial statement dated May 3 1, 2004, Federal Tax Return Forms 1040 for the years 200 1, 2002, 
and 2003; and information related to the business, including a lease copy, utility bills, and a copy of the 
petitioner's menu. 
Based on the DOL letter provided, the Service Center requested fiom the DOL a duplicate copy of the 
certified ETA 750 Form filed by New China Express on behalf of the beneficiary. The DOL issued a 
duplicate to the Service Center on October 26, 2004. The duplicate ETA 750 showed the following 
information: petitioner: New China Express; address: 121 1 Waterman, San Bernadino, CA 92404; position: 
cook, specialty foreign (Chinese food); date filed: June 28, 1996; date approved: April 10, 1998. 
As the certified labor certification provided listed a different petitioner and address than was listed on the 
Form 1-140, on January 26, 2005, the Service Center issued a second RFE. The second WE specifically 
requested that the petitioner, , submit evidence that it was the successor-in-interest to 
the petitioner listed on the ETA 750,' New China Express, including Forms ETA 750, Parts A and B, 
uncertified to reflect information regarding the successor; documentation to show how the change of 
ownership occurred, and documentation to show that the petitioner will assume all the rights, duties, 
obligations, and assets of the original employer. 
In res o 
 to the second WE, the petitioner's owner submitted a letter, which provided that: '- 
restaurant, would like to sponsor 
 to be an employee at my restaurant. I plan 
to hire her for the executive chef position at my restaurant. I have completed and filed the ETA 750 form to 
the US Department of Labor on April 9. 2003-and have not vet received the labor certification." The letter 
further, and pertinently provides: "New China Express . . . was 
 previous sponsor. 
However, there was a change in ownership. The new employer 
 in Interest, so 
withdrew the Immigration 
 Work. Having no relations with the employer at New China 
Express and being aware of 
 tuation, I decided to sponsor her. Therefore, I am unable to submit 
the following documentation: 
 ocumentation to show how the change of ownership occurred . . . 2) 
- 
documentation to show the petitioner will assume all the rights, duties, obligations, and assets of the original 
employer." 
2 
 To show that the new entity qualifies as a successor-in-interest to the original petitioner requires 
documentary evidence that the new entity has assumed all of the rights, duties, and obligations of the 
predecessor company. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 48 1 (Comm. 1986). 
WAC-03-216-5 1586 
Page 4 
On ~pril 29, 2005, the director denied the petition as the 1-140 petitioner was not able to establish that it was 
the successor-in-interest to the petitioner on the certified ETA 750. The petitioner appealed and indicated 
lab& certificated." We believe that the petitioner refers to-the labor certification 
has filed on behalf of the beneficiary. Upon certification of the labor certification 
that ?mlibim has filed on behalf of the present beneficiary, the petitioner would then be able to 
validly file a new 1-140 petition, with qualifying evidence, for the beneficiary. The petitioner may not present 
the certified ETA 750 acthe appeal stage, bit isinstead a prerequisite to filing the 1-140 Petition itself. - 
The petitioner did not submit any further documentation and cannot establish that it is the successor-in- 
interest to New China Express. Accordingly, the petition was properly denied. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.