dismissed EB-3 Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-T-R-&R-. INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 15. 2017 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. an education business, seeks to employ the Beneficiary as a science teacher. 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 of the Texas Service Center denied the petition, concluding that the record did not 
establish that the petition could be approved under the professional classification. We remanded the 
matter to the Director to consider the petition under the skilled worker classification. The Director 
subsequently denied the petition under that classification, finding that the Beneficiary's degrees were 
not issued by an accredited university: that the Petitioner did not resolve inconsistencies in the 
Beneficiary's experience and, therefore, that it did not establish that the Beneficiary had the required 
experience for the offered position; that the Petitioner did not establish its continuing ability to pay 
the proffered wage; and that the Petitioner did not establish that the job offer is hona fide based on 
the sale of its assets to another entity. 
On appeaL the Petitioner's claimed successor-in-interest submits additional evidence and asserts that 
that the Beneficiary's degrees were issued by accredited universities in India: that the Beneficiary 
has the required education and experience for the offered job: and that the Director should have 
raised the ability to pay issue earlier in the proceedings. 
Upon de no\'0 review. we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL). 1 See section 
1 
The priority date of a petition is the date the DOL accepted the labor ce1iiflcation for processing. which in this case is 
June 29,2010. See 8 C.F.R. ~ 204.5(d). 
.
Matter ofG-T-R-&R- , Inc. 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that employing a foreign national in the position will not adversely atTect the wages 
and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of 
the Act. Second, the employer tiles an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third. if USCJS 
approves the petition. the foreign national applies for an immigrant visa abroad or. if eligible. 
adjustment of status in the United States. See section 245 ofthe Act. 8 U.S.C. § 1255. 
II. ANALYSIS 
A. Petitioner's Sale of Assets 
The Director denied the petition concluding , in part, that the Petitioner did not establish that the job 
offer is bona fide based on the sale of its assets to a separate 
entity. The appeal was filed by '' (formerly 
did not tile an amended Form 1-
140 or prove that a valid successor-in-interest relationship has been established. The appellant did 
not address this portion of the Director's decision on appeal? 
A valid successor-in-interest relationship exists if three conditions are satisfied. See Matter o( Dial 
Auto Repair Shop. Inc .. 19 l&N Dec. 481 (Comm'r 1986). 3 First, the petitioner must fully describe 
and document the transfer and assumption of the ownership of the redecessor by the successor. !d. In 
response to the Director 's notice of intent to deny , asserted that it is 
the Petitioner's successor-in-interest. 4 Pursuant to an asset purchase agreement dated December 30, 
2015, between the Petitioner , and the Petitioner 
sold certain assets (excluding assets listed on Schedule 1.2) to 
Further, assumed certain listed liabilities of the Petitioner , 
including the Petitioner's obligations under certain immigration petitions for personnel listed on 
Schedule 1.3(a)(i). However, the Schedules were not included in the record. Therefore, it is not 
clear which assets purchased, or whether it assumed the 
Petitioner's obligations for the current Form I-140. Thus, the record does not fully describe and 
document the transfer and assumption of the ownership of the predecessor by the purpmted successor. 
2 A petitioner bear s the burden of establishing eligibility for the immigration benefit sought. Section 291 of the Act. 
8 U .S.C. § 1361; Malter of Skirball Cultural Ctr., 25 I&N Dec. at 806. A petitioner must establish that it meet s each 
eligibility requirement by a preponderance of the evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 
2010). 
J See also 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: Adjudicators Field Afanual (AFMJ 
Update to Chapter 22.2(b){5) (AD09-37) 3-4 (Aug. 6, 2009), https :!/www.u sc is.gov /sites /default /file s/USCIS / 
La ws%20and%20 Regu lations /M emoranda /2009%20 Memos %2 0 8 y%20Month / A ugust %20 2009 /Successor- in-1 ntere st-
8-6-09.pdf (last visited Nov. 20, 20 17). 
~Alternatively, it stated that it changed its name and was under new management. 
2 
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Matter ofG-T-R-&R-. inc. 
Second, the job opportunity offered by the successor must be the same as the job opportunity originally 
otTered on the labor certification. !d. at 482. asserted that its job 
opportunity is the same as the job opportunity originally offered on the labor certification but provide s 
no evidence in support of its claim. Third , the successor must establi sh eligibility for the immigrant 
visa in all respects . The successor must prove the 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, the successor 
must establish its ability to pay the proffered wage from the date of transfer of ownership forward. See 
8 C.F.R. § 204.5(g)(2); see also Matter of'Dial Auto, 19 T&N Dec. at 482. As discussed at length later 
in this decision, has not established the Petitioner's ability to pay 
the proffered wage as of the priority date until the date of transfer of ownership. and it has not 
established its ability to pay the proffered wage from the date of transfer of ownership forward. 5 Thus, 
a valid successor-in-interest relationship has not been established. 
B. Beneficiar y's Education 
The Director also denied the petition concluding, in part , that the Petition er did not establish that the 
Beneficiary posse ssed the education required by the labor certification as of the priority date becau se 
the Beneficiary's degr ees were not issued by an accredited university. 
A beneficiary must meet all of the requirem ents of the offered position set forth on the labor 
certification by the priority date of the petition . 8 C. F. R. § 1 03.2(b )(\), ( 12); Malter of Wing's Tea 
House, 16 T&N Dec. 158, 159 (Acting Reg'! Comm'r 1977). ln this case, the labor certificati on 
requires a bachelor ' s degree in science-education, chemistry-education , biological sciences­
education, physics-education , or a related field . 
The record contain s the Beneficiary's bachelor of science in chemistry diploma and transcript s from 
her master of science in chemistry diploma and transcripts; her bach elor of education diploma and 
transcripts; her postgr aduate diploma in computer science and application s: and two education al 
evaluations. As noted by the Director in his deci sion, we have reviewed the Electronic Databa se for 
Global Education (EDGE) created by the American Association of Co llegiate Registrars and 
Admissions Officer s (AAC RA0). 6 According to EDGE , the Benefici ary's three-year bachelor of 
science degree in chemistry is comparable to three yea rs of univer sity study in the United States: 7 
5 While the record contain s paychecks issued to the Beneticiary by in 20 16. it does 
not contain regulator y-prescribed ev idence of its ab ility to pay the proffered wage pursuant to 8 C.F.R. ~ 204.5(g)(2). 
6 According to its website. AACRAO is "a nonprofit, voluntary. professional association of more than 11,000 higher 
education professional s who represent approximately 2,600 institutions in more than 40 countries." Ahout AACRAO, 
http ://www.aacrao.org /home /about (last visited Nov . 20, 20 17). According to the reg istrat ion page for EDGE , EDGE is 
··a web-based reso urce for the evaluation of fore ign educational credentials.'' AACRAO EDGE, 
http ://edge.aacrao.org /info.p hp (last visited Nov. 20. 20 17). 
7 
A A CRA 0 EDGE . http ://edge .aacrao.o rg/co untry /crede ntia !/bache lor-of-arts-b a-bac he I or-o f-commerce-bcom-bache lor­
of-science-bsc?cid =single (last visited Nov. 20 , 20 17). A United States baccalaureate degree is generally found to 
require four yea r
s of ed ucat ion. Maller of'Shah , 17 l&N Dec . 244 (Reg' I Comm ' r 1977). 
.
Maller ofG-T-R-&R-. Inc. 
her master of science degree in chemistry is equivalent to a bachelor's degree in the United States;
8 
and her bachelor of education degree following her three-year bachelor of science degree is 
comparable to a bachelor's degree in the United States. 9 
EDGE also discusses Indian postgraduate diplomas, for which the entrance requirement is 
completion of a two- or three-year baccalaureate degree. EDGE states that a postgraduate diploma 
following a three-year bachelor's degree represents attainment of a level of education comparable to 
a bachelor's degree in the United States (if issued by an accredited university or an institution 
approved by the All-India Council for Technical Education). 10 
However, because the Director found that the Beneficiary's master's degree was not issued by an 
accredited university, he found the Beneficiary's education insufficient to qualify for the offered 
position. On appeal, the appellant asserts that the Beneficiary's master's degree was issued by an 
accredited university in India and submits an opinion from regarding at1iliation and 
accreditation of educational institutions in India. Considering the evidence submitted on appeal. we 
find that the record demonstrates that the Beneficiary's bachelor's degrees, master· s degree. and 
postgraduate diploma were issued by accredited universities in India. Further. in accordance with 
the findings of EDGE, the record establishes that the Beneficiary has the required education for the 
offered job. Therefore, we will withdraw that portion of the Director's decision. 
C. Beneficiary's Experience 
The Director also denied the petition concluding, in part, that the Petitioner did not establish that the 
Beneficiary possessed the experience required by the labor certification as of the priority date. In 
this case, the labor certification requires 12 months of experience in the job offered (science teacher) 
or as a teacher. 
The labor certification states that the Beneficiary qualifies for the offered position based on 
experience as a teacher with in India; as 
a teacher with in India; as a teacher with 
in India; and with the Petitioner in the offered position. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer. and a specific description of the 
duties performed by the beneficiary. See 8 C.F.R. § 204.5(1)(3). 
8 
AACRAO EDGE. http://edge.aacrao.org/country/credential/master-of-arts-or-commerce?cid=sing1e (last visited Nov. 
20, 2017). 
9 
AACRAO EDGE. http:l/edge.aacrao.org/country/credentia1/bachelor-of-education-bed?cid=single(last visited Nov. 20. 
2017). 
10 
AACRAO EDGE, http://edge.aacrao.org/country/credential/post-graduate-diploma-pgd?cid
2
·single (last visited Nov. 
20, 2017). 
4 
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Maller qlG-T-R-&R- , Inc. 
The record contains an employment letter from the principal of 
stating that the school employed the Beneficiary as a chemistry teacher from October 7, 1999, to 
May 31, 2003. However, as noted by the Director, the letter does not provide the name of princip al. 
Additionally, the Director noted that the letterhead of the school appear s to be crooked, and a search of 
public records does not reveal that such a school exists in India. The record also 
contains a service certiiicate from principal of 
stati ng that it employed the Beneficiary from June 2007 to March 12, 2008. 
However, the Director noted that the letter does not provide a descripti on of the Beneficiar y"s job 
duties or her job title. 
The Petitioner further submitted a service certificate from the head master at 
stating that the Beneficiary worked as a post graduat e assistant (chemistry) from 
July 9, 2004, to March 8, 2007. But, as the Director noted, that the letter does not provide a 
description of the Beneficiary's duties and that her job title is unrelated to the position of a teacher. 
The Petitioner must reso lve these inconsistencie s and ambiguities in the record with indep endent. 
objective evidence pointing to where the truth lies. Maller of Ho, 19 I&N Dec. 582, 591-92 (BI A 
1988). The Director determined that the Petitioner had not sufficiently resol ved these 
inconsistencies and ambiguities. 
On appeal, the appellant provides links to websit es and states that is an existing 
and functioning school in India, and that the Beneficiary's duties as a post graduate assistant 
(chemistry) at the included duties related to the offered 
position of science teacher and, therefore , qualified her tor the otfered position. The opinion from 
submitted on appeal states that it is common in India for teaching position s to be titled 
as post graduate assistant positions; that it is common for post graduate assistants to teach high 
school and higher seco ndar y school leve ls; that teac her position s are considered to be ''self­
explanatory and hence gene rally the experi ence l
etters do not provid e details ofjob duties; .. that the 
Beneficiary's job with a gove rnment school involved job duties that are de tined in enacted laws and 
the rules; and that these laws and rule s, together with the experienc e 
letter, indicate that the Beneficiary was employed as a ' 
to teach chemistry." 
However , with regard to the Beneficiar y's experience at the 
appellant did not submit independent , objective evidence of her employment as a chemistry teacher 
from October 7, 1999, to May 31, 2003. The appe llant has not resolved the inconsistencie s in the 
record, namely the crooked letterhead , and the actual existence of 
in India. Further, the letter submitted by the Petition er does not meet the regulatory 
requirements of 8 C.F.R. ~ 204.5(1)(3), as it does not list the name of the writer. Thus, the record does 
not establish that the Beneficiary was employed as a chemistry teach er by 
With regard to 
the Beneficiary's experience at the Petition er 
did not submit 
a letter meeting the requirements of 8 C.F. R. ~ 204 .5(1)(3), as the letter did not provide 
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Maller (?f'G-T-R-&R-. Inc. 
a specific description of the duties performed by the Beneficiary. The letter stated that Beneficiary 
worked as a post graduate assistant (chemistry) from July 7, 2004, to March 8, 2007, but did not 
provide any description of her duties. The opinion from does not provide 
independent, objective evidence of the Beneficiary's experience at 
as was not employed by and is not 
authorized to verify the Beneficiary's employment on its behalf. Thus, the record does not establish 
that the Beneficiary was employed as a teacher by 
The appellant did not submit additional evidence regarding the Beneficiary's employment with 
on 
appeal. The letter submitted by the Petitioner 
does not meet the regulatory requirements of 8 C.F.R. § 204.5(1)(3), as it does not provide a specific 
description of the Beneficiary's duties or her job title. Thus. the record does not establish that the 
Beneficiary was employed as a teacher by 
The record does not establish that the Beneficiary possessed the experience required by the labor 
certification as of the priority date. 
D. Ability to Pay the Proffered Wage 
The Director further denied the petition concluding, in part, that the Petitioner did not establish its 
continuing ability to pay the proffered wage from the petition's priority date onward. The proffered 
wage is $41,010 per year, and the priority date is June 29,2010. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of pro.spective 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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where 
the prospective United States employer employs 100 or more workers. the director 
may accept a statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proflered wage and the wages paid, if any. If a 
Matter olG-T-R-&R-. Inc. 
petitioner's net income or net current assets are insufficient we may also consider other evidence of 
its ability to pay the proffered wage. 
11 
In this case. the Petitioner submitted copies of IRS Fom1s W-2. Wage and Tax Statements, 
demonstrating that it employed the Beneficiary in 2010, 201 L 2012. 2013. 2014, and 2015. The 
Forms W-2 reflect that the Petitioner paid the Beneficiary as follows: 
• $51,027.96 in 2010; 
• $49,050.15 in 2011; 
• $48,360.32 in 2012; 
• $47.958.03 in 2013; 
• $46,771.09 in 2014; and 
• $46,915.04in2015. 
The amounts on the Forms W-2 exceed the annual protlered wage of$41,010 each year. However, 
while the record contains the Petitioner's audited financial statements for 2013, it does not contain 
regulatory-prescribed evidence of its ability to pay the proffered wage for 2010. 2011, 2012. 2014. 
and 2015. See 8 C.F.R. § 204.5(g)(2). Absent such evidence. we cannot find that it has the ability to 
pay the proffered wage in these years. 
The Petitioner provided a letter from its chief financial officer (CFO) stating that it has more than 
100 employees and the ability to pay the proffered wage. However. as the Director noted, the 
Petitioner was previously the subject of a DOL Wage and Hour Division investigation concerning 
the payment of H-1 B nonimmigrant wages. Further. the Petitioner has filed multiple Form I-140 
petitions.
12 
Therefore, it is within our discretion not to consider the CFO's letter as evidence of the 
Petitioner's ability to pay the proffered wage. 
We may consider evidence of a petitioner's ability to pay beyond its net income and net current 
assets, including such factors as: the number of years it has conducted business; the growth of its 
business; its number of employees; the occurrence of any uncharacteristic business expenditures or 
losses; its reputation in its industry; whether a beneficiary will replace a current employee or 
outsourced service; or other evidence of its ability to pay a proffered wage. See Matter ol 
Sonegawa. 12 I&N Dec. 612.614-615 (Reg'l Comm'r 1967). 
11 
Federal courts have upheld our method of determining a petitioner's ability to pay a protTered wage. S'ee. e.g .. River 
St. Donuts. LLC v. Napolitano. 558 F.3d I I L I 18 (I st Cir. 2009); Tongatapu Woodcraft Haw .. Ltd. v. Feldman, 736 
F.2d 1305, 1309 (9th Cir. 1984 ); Estrada-Hernandec: v. Holder, -- F. Supp. 3d --. 2015 WL 3634497, *5 (S.D. Cal. 20 15); 
Ri:::ri 1·. Dep 't of /lome/and Sec .. 3 7 F. Supp. 3d 870. 883-84 (S.D. Tex. 2014 ), aff'd. -- Fed. Appx. --. 2015 WL 
5711445. *I (5th Cir. Sept. 30. 2015). 
lc Where a petitioner has filed Form 1-140 petitions for multiple beneficiaries. it must demonstrate that its job offer to each 
beneficiary is realistic. and that it has the ability to pay the proffered wage to each beneficiary. See 8 C.F.R. ~ 204.5(g)(2): 
see also Patel 1'. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of a petition where a petitioner did 
not demonstrate its ability to pay multiple beneficiaries). The Director noted that the Petitioner did not provide information 
regarding all of its pending petitions in 20 I 0 and 20 II in response to a request for that evidence. 
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Matter ofG-T-R-&R-. Inc. 
In this case, the absence of regulatory-prescribed evidence of its ability to pay the proffered wage in 
2010, 2011, 2012, 2014, and 2015 inhibits our ability to analyze the totality of the Petitioner's 
circumstances, as the record does not contain information on the Petitioner's financial history. The 
Petitioner asserted on the petition that it was established in 2001. However, online records show that 
it was administratively dissolved in the State of Georgia in 2016. 13 The Petitioner did not establish 
the growth of its business; the occurrence of any uncharacteristic business expenditures or losses; or 
its reputation in its industry. Moreover, the Beneficiary stated on the labor certification that she was 
employed by the Petitioner in the offered job at the time of filing. so it does not appear that the 
Beneficiary will replace a current employee or outsourced service. Thus, assessing the totality of 
circumstances in this individual case, the record does not establish the Petitioner's continuing ability 
to pay the proffered wage. 
On appeal, the appellant states that the Director should have raised the ability to pay issue earlier in 
the proceedings. However, on appeal, it submits no additional evidence to establish its ability to pay 
the profTered wage. The record does not establish the Petitioner's continuing ability to pay the 
proffered wage from the petition's priority date onward. 
III. CONCLUSION 
The record establishes that the Beneficiary had the required education for the offered job as of the 
priority date. However. the record does not establish that the Beneficiary possessed the experience 
required by the labor certification as of the priority date; that the Petitioner had the continuing ability 
to pay the proffered wage from the priority date onward; or that a valid successor-in-interest 
relationship exists. 
ORDER: The appeal is dismissed. 
Cite as Maller oj'G-T-R-&R-. Inc., ID# 652634 (AAO Dec. 15, 20 17) 
13 
Ga. Corp. Div .. Ga. Sect. of State. https://ecorp.sos.ga.gov/BusinessSearch/Businesslnformation?businessld= 
&businessType=Domestic%20Profit%20Corporation (last visited Nov. 20. 20 17).