dismissed EB-3 Case: Dental Technology

MATTER OF D-D-S-L-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 7, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a dental laboratory, sought to employ the Beneficiary as a dental lab 
technician. It requested his classification under the third-preference immigrant category as an "other 
worker." Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This category allows a U.S. business to sponsor a foreign national for lawful 
permanent resident status based on a job offer requiring less than two years of training or experience. 
The Acting Director of the Nebraska Service Center denied the petition. The Director concluded 
that the record did not establish the Beneficiary's possession of the minimum qualifications for the 
offered position. 
On appeal, the Petitioner submitted additional evidence and asserted the Beneficiary's qualifications 
for the position. During the appeal's pendency, however, the Petitioner terminated its business. 
Another corporation asserts itself as the Petitioner's successor in interest. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION LAW 
Employment-based immigration generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, an employer must first obtain 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). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position, and that employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If the DOL approves a position, an employer must next submit the 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 considers whether a Beneficiary meets the 
DOL-certified job requirements of a position. If USCIS approves a petition, a foreign national may 
finally 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. 
Matter of D-D-S-L-, Inc. 
II. SUCCESSORSHIP IN INTEREST 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, an "other worker" petition must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). A labor certification remains valid 
only for the particular job opportunity stated on it. 20 C.F.R. § 656.30(c)(2). 
A business may use another employer's labor certification if it establishes itself as the employer's 
successor in interest. Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986). For 
immigration purposes, a successor must: 1) document its acquisition of a predecessor's business; 2) 
establish that, but for the ownership change, the job opportunity remains the same as listed on the 
labor certification; and 3) demonstrate its eligibility as a petitioner, including the abilities of it and its 
predecessor to continuously pay the proffered wage from the petition's priority date onward. Id. at 
482-83.1 
Here, in response to our notice of intent to dismiss (NOID), the Petitioner's former president 
concedes that, after the appeal's filing, the petitioning corporation dissolved. He asserts that another 
corporation, of which he is also president and chief executive officer, acquired the Petitioner's 
business and seeks to employ the Beneficiary in the offered position. 
The record, however, does not establish the other corporation as the Petitioner's successor in 
interest. Contrary to Dial Auto, the record does not document the corporation's acquisition of the 
Petitioner's business. Copies of business certificates and corporate statements indicate the 
corporation's operation of a dental laboratory at the Petitioner's former address. But these 
documents do not demonstrate the corporation's acquisition of the rights and obligations needed to 
continue the Petitioner's business. 
The corporation argues that an accountant has not yet prepared audited financial statements that will 
demonstrate its successorship. But the record does not establish the unavailability of other evidence 
of the corporation's claimed acquisition of the Petitioner's business. See Matter of Dial Auto, 19 
I&N Dec. at 482 (requiring a claimed successor to "fully explain the manner" of the business 
takeover and to provide a copy of "the contract or agreement" detailing the transaction).2 
1 This petition's priority date is March 10, 2017, the date the DOL accepted the accompanying labor certification 
application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
2 The record also lacks evidence of the abilities of the corporations to continuously pay the proffered wage from the 
petition's priority date of March 10, 2017. See 8 C.F.R. § 204.5(g)(2) (requiring evidence of ability to pay in the form of 
annual reports, federal income tax returns, or audited financial statements). The claimed successor, however, argues that 
required evidence of the corporations' abilities to pay is not yet available. It states that it did not begin business until 
2018 and that the Petitioner has not yet filed its 2017 federal income tax returns. Because of the unavailability of 
required evidence, we do not base our successorship determination on ability to pay. In any future filings in this matter, 
however, the claimed successor must submit required evidence of the corporations' abilities to continuously pay the 
proffered wage from the petition's priority date. 
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Matter of D-D-S-L-, Inc. 
Before requiring it to prove successorship, the corporation argues that we should decide the appeal 
based on the Beneficiary's qualifications for the offered position. We decline to do so, however. 
The Petitioner terminated its business. Thus, without sufficient evidence of the new corporation's 
successorship, the invalidity of the labor certification bars the petition's approval based on the new 
job offer. The Beneficiary's qualifications for the position are therefore moot. See Matter of Luis­
Rodriguez, 22 I&N Dec. 747, 753 (BIA 1999) (holding that, as a matter of prudence, administrative 
tribunals may dismiss appeals or deny motions that lack practical significance). 
The corporation further contends that, under USCIS policy, our immediate consideration of its 
successorship first requires issuance of a request for evidence (RFE). Quoting an internal USCIS 
memorandum, the corporation states that adjudicators "should issue an RFE to the petitioner if the 
petitioner has failed to demonstrate a qualified successor-in-interest relationship." Memorandum 
from Donald Neufeld, Acting Assoc. Dir., Domestic Ops., USCIS, HQ 70/6.2, Successor-in-Interest 
Determinations in Adjudication of Form 1-140 Petitions; Adiudications Field Manual (AFM) Update 
to Chapter 22.2(b)(5) (AD09-37) 9 (Aug. 6, 2009), https://www.uscis.gov/ legal-resources/policy­
memoranda. 
Pursuant to the memo, however, our NOID effectively served as an RFE. The NOID notified the 
Petitioner's former president and counsel of the ability of a successor to continue the appeal, stated 
that a successor "must first establish" its successorship under Dial Auto, and provided a reasonable 
opportunity to submit evidence. The corporation's "[s]ubmission of only some of the requested 
evidence will be considered a request for a decision on the record." 8 C.F.R. § 103.2(b)(l l). Also, 
similar to our issuance of the NOID, the Commissioner of the former Immigration and 
Naturalization Service in Dial Auto instructed the petitioner's counsel on appeal to explain and 
document its claimed acquisition of the business of the labor certification employer. Matter of Dial 
Auto, 19 I&N Dec. at 482. Our NOID therefore complies with USCIS policy and precedent case 
law. 
For the foregoing reasons, the record does not establish the claimed successorship in interest. 
III. CONCLUSION 
Absent sufficient evidence of successorship in interest, the Petitioner's termination of its business 
rendered the accompanying labor certification invalid. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
Cite as Matter ofD-D-S-L-, Inc., ID# 1409585 (AAO Aug. 7, 2018) 
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