dismissed EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-1-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 24,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant operator, seeks to employ the Beneficiary as a food service manager. It 
requests his classification 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 category allows a U.S. business to sponsor a foreign national with at least 
two years oftraining or experience for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition and the Petitioner's following 
motion to reopen. The Director found that the record did not establish the Petitioner as a successor 
in interest to the employer stated on the accompanying labor certification. He therefore concluded 
that, contrary to regulations, the petition lacked a valid labor certification. 
On appeal, we affirmed the Director's decision. We also found that the record did not establish the 
Beneficiary's possession of the experience required for the offered position. The matter is before us 
again on the Petitioner's motions to reopen and reconsider. On motion, the Petitioner asserts that we 
erred in our prior decision. 
Upon review, we will deny the motion to reopen and motion to reconsider. 
I. LAW 
A. Motion Requirements 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 1 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 1 03.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
B. Employment-Based Immigration 
Employment-based immigration generally follows a three-step process. First, an employer files a 
labor certification application with the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
Matter of K-J-C-, Inc. 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). The DOL must certify that the United States lacks able, 
willing, qualified, and available workers for an offered position, and that employment of a foreign 
national will not hurt the wages and working conditions of U.S. workers with similar jobs. !d. If the 
DOL approves the labor certification application, the employer then files an immigrant visa petition 
with United States Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Finally, if USCIS approves the petition, the foreign national may 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. 
II. ANALYSIS 
A. Motion to Reopen 
Because the filing lacks the submission of new facts or additional evidence, we will deny the motion 
to reopen. See 8 C.F.R. § 1 03.5(a)(2) (requiring affidavits or other documentary evidence to support 
a motion to reopen). 
B. Motion to Reconsider 
On motion, the Petitioner urges reconsideration of its claimed successorship in interest to the labor 
certification employer and the Beneficiary's qualifying experience. For the following reasons, the 
record does not establish an incorrect application of law or policy or the Beneficiary's qualifications 
for the benefit sought. We will therefore also deny the motion to reconsider. 
1. The Petitioner's Claimed Successorship in Interest 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a skilled worker must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). A labor certification generally 
remains valid only for the job offer from the employer stated on it. See 20 C.F.R. § 656.30(c)(2) 
(stating that a labor certification's validity continues "only for the particular job opportunity"). 
A petitioner may use another employer's labor certification if the petitioner establishes itself as a 
successor in interest that acquired the rights and obligations needed to continue the prior employer's 
business. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986). For 
immigration purposes, a successor in interest must: 1) fully describe and document its acquisition of 
a predecessor's business; 2) demonstrate that, but for the change in employers, the job opportunity 
remains the same; and 3) otherwise qualify for the petition's approval. !d. at 482-83. Qualifying for 
the petition's approval includes demonstrating the predecessor's ability to pay the proffered wage 
from the petition's priority date until the predecessor's transfer ofthe business, and the successor's 
ability to pay thereafter. 1 !d. 
1 
In this case, the petition's priority date is the date DOL received the labor certification application for processing. See 
2 
Matter of K-J-C-, Inc. 
In our appellate decision, we found that the Petitioner did not fully describe and document its 
acquisition of the rights and obligations needed to continue operating the labor certification 
employer's restaurant. The record contains a copy of a written agreement, documenting the 
Petitioner's 2013 purchase of the restaurant's furniture, equipment, and fixtures. But the agreement 
does not indicate the Petitioner's acquisition of other restaurant necessities, such as a deed or lease 
for kitchen and dining space. The record therefore does not document the Petitioner's acquisition of 
the rights and obligations needed to continue the restaurant's business. 
On motion, the Petitioner interprets our finding as faulting it for not assuming the debts and 
liabilities of the labor certification employer. Our decision noted that the agreement appears to 
contradict the Petitioner's claim that it "inherited" the employer's debt. But the Petitioner need not 
establish its assumption of the employer's debts and liabilities. As discussed above, we find only 
that the Petitioner did not establish its acquisition of the essential rights and obligations needed to 
operate the employer's restaurant. 
We also found that the Petitioner did not establish its job opportunity as the same one stated on the 
labor certification. On motion, the Petitioner states that the job duties of the offered position remain 
the same as the original job opportunity. Our finding, however, did not focus on the job's duties. 
Rather, we found that the record lacked evidence of the Petitioner's continued operation of a 
restaurant in the geographical area of intended employment stated on the labor certification. 
On reconsideration, however, we note that the Petitioner's payroll and tax records indicate its 
operation of a restaurant from the worksite stated on the labor certification. Payroll records indicate 
the Petitioner's employment of "cooks," "wait staff," and "bussers." Its address on its tax records 
also matches the worksite on the labor certification employer. A preponderance of the evidence 
therefore establishes the Petitioner's job opportunity as the same one stated on the labor certification. 
In addition, our decision found that the record did not establish the continuing abilities of the 
Petitioner and the labor certification employer to pay the proffered wage from the petition's priority 
date of June 26, 2008. See 8 C.F.R. § 204.5(g)(2). Specifically, we found insufficient evidence of 
the labor certification employer's ability to pay from 2009 through 2011, and the Petitioner's ability 
to pay from 2013, the year it purchased assets of the restaurant. 
On motion, the Petitioner asserts that it has paid the Beneficiary the proffered wage "for quite some 
time. So there is no reason why the petitioner cannot continue to do so." 
On reconsideration, we find that the record establishes the Petitioner's ability to pay the proffered 
wage of$19.46 an hour in 2013. For a 40-hour work week, the proffered wage constitutes $778.40 a 
week. In 2013, a copy of an IRS Form W-2, Wage and Tax Statement, indicates that the Petitioner 
paid the Beneficiary $20,500. Thus, during the 14 weeks remaining in 2013 after the Petitioner's 
8 C.F.R. § 204.5(d). 
3 
Matter of K-J-C-, Inc. 
September 28 purchase of restaurant assets, the Form W-2 indicates weekly payments of more than 
$1,400. The record therefore establishes the Petitioner's ability to pay in 2013. 
Beyond 2013, the record lacks required evidence of the Petitioner's ability to pay the proffered 
wage. 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 Petitioner submitted a copy of IRS 
Form 8879-S, e~file Signature Authorization for Form 1120S, for 2014. Although containing a 
summary of the company's annual financial information, this form does not constitute part of the tax 
returns the Petitioner submitted to the Internal Revenue Service (IRS). On its top, the form states: 
"Don't send to the IRS. Keep for your records." Thus, contrary to 8 C.F.R. § 204.5(g)(2) , the 
record does not contain required evidence of the Petitioner's ability to pay beyond 2013. 
Also, as previously indicated, the record does not establish the labor certification employer's ability 
to pay the proffered wage in 2009 through 2011. Therefore, the record does not establish the 
continuous abilities of the Petitioner and the labor certification employer to pay the proffered wage 
from the petition's priority date onward. 
Thus, the record on motion establishes the Petitioner's job opportunity as the same one stated on the 
labor certification. But the record does not establish the Petitioner's acquisition of the rights and 
obligations needed to continue the labor certification employer's business, or the continuing abilities 
of it and the labor certification employer to pay the proffered wage. The record therefore does not 
establish the Petitioner as a successor in interest to the employer, or the validity of the labor 
certification. We will therefore affirm our appellate decision. 
2. The Beneficiary's Qualifications 
The record on motion also does not establish the Beneficiary's qualifications for the offered position 
of food service manager. A petitioner must establish a beneficiary's possession of all the education, 
training, or experience stated on a labor certification by a petition's priority date. See, e.g., Matter of 
Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). In this case, the labor 
certification states the minimum requirements of the offered position as 24 months in the job offered. 
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained 
more than seven years of full-time, qualifying experience. The Beneficiary stated that he worked 
more than five years as a food service manager for the labor certification employer, from November 
2002 to June 2008. He also stated that another U.S. restaurant employed him for two years, from 
April1995 to May 1997. 
A petitioner must support a beneficiary's claimed qualifying experience with a letter from an 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must provide the employer's name, address, and 
title, and describe the beneficiary's experience. !d. 
4 
Matter of K-.1-C-, Inc. 
Here, the record contains two letters from the other U.S. restaurant. Both letters, issued on the same 
date with the same signatory, state the restaurant's employment of the Beneficiary from April 1995 
to May 1997. One letter states the Beneficiary's employment as the restaurant's manager. The 
other, however, identifies his position as cook. The discrepancy in the Beneficiary's position casts 
doubt on his claimed qualifying experience in the job offered. See Matter of Ho, 19 I&N Dec. 582, 
591 (requiring a petitioner to resolve inconsistencies of record by independent, objective evidence). 
Also, with his application for adjustment of status, the Beneficiary submitted a Form G-325A, 
Biographic Information. Contrary to the Beneficiary's attestation on the labor certification, the 
Form G-325A states his employment as a manager from April 1995 to May 1997 by both the other 
U.S. restaurant and the labor certification employer. In addition, the Beneficiary submitted a letter 
from the labor certification employer in support of his adjustment application. Contrary to the 
Beneficiary's attestation, the 2013 letter states the labor certification employer's employment of him 
as manager since 1992. These additional, unexplained discrepancies in the Beneficiary's 
employment history cast further doubts on his claimed, qualifying experience. 
On motion, the Petitioner denies that the letters from the other U.S. restaurant state inconsistent jobs. 
Because managers often perform other restaurant duties as needed, the Petitioner asserts that, as 
manager of the other U.S. restaurant, the Beneficiary could have served as a cook because of another 
worker's unavailability or an increased workload at the restaurant. 
The record, however, lacks independent, objective evidence to support the Petitioner's assertion that 
the Beneficiary served the other U.S. restaurant as both a manager and cook. Also, the Petitioner 
must demonstrate the Beneficiary's possession of at least 24 months of experience in the offered 
position of food service manager. If the Beneficiary spent part of his tenure at the other U.S. 
restaurant as a cook, then he may lack the required 24 months of experience in the job offered. The 
record does not indicate the amount of time the Beneficiary spent working as a cook. The record 
therefore does not establish the Beneficiary's possession of the qualifying experience with the other 
U.S. restaurant. 
For the foregoing reasons, the record on motion does not establish the Beneficiary's possession of 
the experience required for the offered position. 
III. CONCLUSION 
The Petitioner's motion to reopen lacks required evidence. The Petitioner's motion to reconsider 
does not persuade us of the labor certification's validity or the Beneficiary's qualifications for the 
offered position. 
Matter of K-J-C-, Inc. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of K-J-C-, Inc., ID# 274828 (AAO May 24, 2017)