dismissed EB-3 Case: Food Service

) 
U.S. Citizenship 
and Immigration 
Services 
MATTER OF KBJ-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 26, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I -140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a food service manager. 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 2 years of 
training or experience. 
The Director, Nebraska Service Center, initially denied the petition for abandonment. The Director 
subsequently granted the Petitioner's motion to reopen and affirmed his denial of the petition. The 
Director determined that the record did not establish the Petitioner as a successor-in-interest to the 
business entity that filed the labor certification, its ability to pay the Beneficiary the proffered wage, 
or the Beneficiary's qualifications for the offered position. 
The matter is now before us on appeal. The Petitioner asserts that in reaching his decision on its 
ability to pay, the Director did not consider relevant case law. It also asserts that the record clearly 
establishes it as a successor-in-interest to the labor certification employer. Upon de novo review, we 
will dismiss the appeal. 
I. LAW AND ANALYSIS 
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, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the 
foreign national must 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. 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by DOL. 1 The priority date of 
1 See section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
(b)(6)
Matter of KBJ-C-, Inc. 
the petition is June 26, 2008.2 
identification number 
for Alien Worker, was filed by 
The labor certification was filed by with federal employer 
The instant Form 1-140, Immigrant Petition 
with (Petitioner). 
Under certain circumstances, a petitioner may rely on a labor certification approved for another 
business entity if it is found to be a "successor-in-interest" to the original labor certification 
employer. The generally accepted definition of a successor-in-interest is: "One who follows another 
in ownership or control of property. A successor in interest retains the same rights as the original 
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 I&N Dec. 481 (Comm'r 1986), a 
binding, U.S. Immigration and Naturalization Service (INS, now USCIS) decision, designated as a 
precedent by the INS Commissioner in 1986, outlines the circumstances under which a successor-in­
interest may be established. 3 
A petitioner may establish a valid successor relationship for immigration purposes if it satisfies three 
conditions. First, it must fully describe and document the transaction transferring ownership of all, 
or a relevant part of, the predecessor employer. Second, it must demonstrate that the job opportunity 
is the same as that originally offered on the labor certification. Third, it must prove by a 
preponderance of the evidence that it is eligible for the immigrant visa in all respects. 4 
We note, however, that USCIS does not read Dial Auto as standing 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 its predecessor, but also the essential rights and 
obligations of the predecessor necessary to carry on the business . 
On appeal, the Petitioner contends that the record clearly establishes it as the successor-in-interest to 
the business entity that filed the underlying labor certification. It also asserts that it will submit a 
brief with a more detailed discussion of its reasoning and additional documentation within 30 days. 
However, as of this date, the record does not contain the promised brief or documentation, which, by 
regulation, is to be submitted directly to this office. 8 C.F.R. § 103.3(a)(2)(viii). Therefore, we 
consider the record in this matter to be complete. 
A. Documentation of Transfer 
To document its ownership of the Petitioner has submitted a copy of a purchase agreement 
2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 
3 The regulation at 8 C.F.R. § 103.3(c) provides that precedent decisions are binding on all immigration officers in the 
administration of the Act. 
4 See also Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, Successor-in­
Interest Determinations in Adjudication of Form 1-140 Petitions ; Adjudicators Field Manual (AFM) Update to Chapter 
22.2(b)(5) 7 (August 6, 2009), http://www.uscis.gov /laws/policy-memoranda. 
2 
(b)(6)
Matter of KBJ-C-, Inc. 
demonstrati{lg that! on September 24, 2013, it paid $10,350 to acquire the assets of 
Evidence of the purchase is also found in the Petitioner's and 2013 
IRS Forms 1120S, U.S. Income Tax Returns for an S Corporation. However, a 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 also agree to the transfer and 
assumption of the essential rights and obligations of the predecessor necessary to carry on the 
business.6 See generally 19 Am. Jur. 2d Corporations § 2170 (201 0). 
We do not, however, find the above agreement to demonstrate a transfer of the essential rights and 
obligations from to the Petitioner. Although the record contains a September 1, 2015, 
statement from the Petitioner's president, in ,which he claims to have purchased 
and to have ''inherited" its debt, the submitted September 24, 2013, agreement states only that 
"shall sell, assign, transfer, and convey to Purchaser" its assets, 
which are defined in the agreement as "restaurant furniture, restaurant equipment, and fixtures." 
Accordingly, the agreement does not demonstrate that the Petitioner acquired the essential rights and 
obligations of on September 24, 2013. 
Further, claim to have inherited debt is contradicted by the language of the 
agreement, which states that the purchase of assets is to be "free and clear of all liens, 
encumbrances and liabilities." Accordingly, the Petitioner has not demonstrated that, in addition to 
purchasing the assets of the it also acquired the essential rights and obligations necessary . 
to carry on its business, the first of the conditions that a petitioner must meet to establish itself as a 
successor-in-interest. 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 Sojjici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 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, 25 I&N Dec. at 369. 
B. Same Job Opportunity 
A petitioning successor must also demonstrate that the job opportunity is the same as that originally 
offered on the labor certification. To ensure that the job opportunity remains the same as originally 
certified, the successor must continue to operate the same type of bl\siness as the predecessor, in the 
5 The agreement indicates that closing will occur on or before September 27, 2013; however , the record does not indicate 
the exact date that the closing took place. J 
6 The mere assumption of immigration obligations, or the transfer of immigration benefits derived from approved or 
pending immigration petitions or applications , will 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). 
3 
(b)(6)
Matter of KBJ-C- , Inc. 
same metropolitan statistical area, and the essential business functions must remain substantially the 
same as before the ownership transfer. Dial Auto, 19 I&N Dec. at 482. This requirement was noted 
by the Director in his request for evidence (RFE) dated July 30, 2015, and the Petitioner failed to 
provide evidence in response to the RFE, or on appeal, to establish that the job opportunity is the 
' same as that originally offered on the labor certification. The failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 
103.2(b)(14). Therefore, the Petitioner has not established that the job opportunity is the same as 
that originally offered on the labor certification. 
C. Eligibility For an Immigrant Visa 
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 and evidence that the 
Beneficiary possesses the requirements for the proffered job. 
1. Ability to Pay the Proffered Wage 
The petitioning successor must prove its predecessor's ability to pay the proffered wage as of the 
priority date on June 26, 2008, and until 
the date of transfer of ownership. In addition, it must 
establish its ability to pay the proffered wage from the transfer of ownership forward. 8 C.F.R. 
§ 204.5(g)(2); see also Dial Auto, 19 I&N Dec. at 482. On appeal, the Petitioner asserts that the 
Director "erred as a matter of law and in fact, by failing to take into consideration the case law cited 
regarding the ability to pay issues." The Petitioner did not submit any additional evidence or case 
law relating to its ability, or the ability of to pay the proffered wage. Going on rec·ord 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
The regulation at 8 C.F.R. § 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 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 this 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 of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). 
4 
(b)(6)
Matter ojKBJ-C- , Inc. 
Here, the priority date of the visa petition is June 26, 2008, and the labor certification reflects that the 
proffered wage is $19.46 per hour or $40,476.80 per year. 
In determining the ability to pay the proffered wage during a given period, USCIS will first examine 
whether the Petitioner or its predecessor employed and paid the Beneficiary during any relevant 
period. The record contains evidence of wages paid to the Beneficiary by as follows: 
Year Form W-2 
Wages Paid 
2008 $13,200 
2009 $13,800 
2010 $16,200 
2011 $15,600 
2012 $15,600 
. 2013 $20,500 
Thus, the Petitioner must demonstrate that can pay the difference between wages actually 
paid 
to the Beneficiary and the proffered wage in 2008 through 2013. The record also shows that the 
Petitioner paid $13,650 and $48,750 in wages to the Beneficiary in 2013 and 2014 respectively. 
USCIS will next examine net income7 and net current assets. Net current assets are the difference 
between current assets and current liabilities. 8 tax returns demonstrate its net income and 
net current assets for 2008 through 2013, as shown in the table below. 
Tax Proffered Wages Balance Net Net Current of Wage Year Wage Paid Owed Income Assets 
2008 $40,477 $13,200 $27,277 $35,533 $14,402 
2009 $40,477 $13,800 $26,677 $23,009 '-$7,218 
2010 $40,477 $16,200 $24,277 -$17,271 -$101,015 
2011 $40;477 $15,600 $24,877 $18,320 -$175,323 
2012 $40,477 $15,600 $24,877 $70,719 -$135,058 
2013 $40,477 $20,500 $19,
977 $192,991 $0 
7 Where an S corporation's income is exclusively from a trade or business, USCIS considers net income to be the figure 
for ordinary income, shown on line 21 of page one of Form 1120S. However, where an S corporation has income, 
credits, deductions or other adjustments from sources other than a trade or business, they are reported on Schedule K. If 
the Schedule K has relevant entries for additional income, credits, deductions, or other adjustments , net income is found 
on Schedule K. 8 According to Barron 's Dictionary of Accounting Terms 117 (3'd ed. 2000), "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). !d. at 118. 
5 
(b)(6)
Matter of KBJ-C-, Inc. 
Based on the table above, for the years 2009 through 2011, did not have sufficient net 
income or net current assets to pay the difference between the proffered wage and wages already 
paid. Therefore, the Petitionerhas not established the ability of to pay the proffered wage 
from the priority date on June 26, 2008, to the date of the purported transfer on September 24, 2013. 
r' 
The record contains the Petitioner's 2013 federal tax return. The tax return lists the Petitioner's net 
income as -$11,903 and net current assets as -$59,421. The Petitioner did not establish that it can pay 
the difference between wages actually paid to the Beneficiary and the proffered wage in 2013. The 
Petitioner did not submit its tax returns, audited financial statements, or annual reports for 2014 and 
2015 as required by 8 C.F.R. § 204.5(g)(2). Therefore, the Petitioner has not established its ability to 
pay the proffered wage from the date of the purported transfer on September 24, 2013, onward. 
The record does not establish the ability of to pay the proffered wage from the priority date 
to the date of the purported transfer on September 24, 2013, or the Petitioner's ability to pay the 
proffered wage from the date of the purported transfer onward. 
2. Beneficiary Qualifications 
A petitioner must establish a beneficiary's possession of all the education, training, or experience 
stated on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 103.2(b)(l), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In the present case, the labor 
certification requires the Beneficiary to have 24 months of experience in the offered position of food 
service manager. It also indicates that no other type of experience will be accepted. 
In Part K. of the labor certification, the Beneficiary lists the following employment experience: 
• Food service manager, 
26, 2008 (the filing date of labor certification); and 
• Food service manager, 
1997. 
The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
from November 1, 2002, to June 
from April 27, 1995, to May 31 , 
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
(B) Skilled workers. If the petition is for a skilled worker, the petition must be 
6. 
(b)(6)
Matter of KBJ-C- , Inc. 
accompanied by evidence that the alien meets the educational, trmmng or 
experience, and any other requirements of the individual labor certification, 
meets the requirements for Schedule A designation, or meets the requirements 
for the Labor Market Information Pilot Program occupation designation. The 
minimum requirements for this classification are at least two years of training or 
expenence. 
The record contains two letters from the owner of 
California), both ofwhich are dated April10, 2001. These 
letters do not, however, demonstrate that the Beneficiary has 24 months of experience as a food 
service manager. In one of the letters, states that she employed the Beneficiary as a 
restaurant manager on a full-time basis from April 27, 1995, until May 1997, and that he was 
responsible for "scheduling work, assigning duties, ordering ingredients, and servicing customer[s]." 
In the other letter, indicates that the Beneficiary worked for her restaurant as a cook 
during this same time period. In light of inconsistent descriptions of the Beneficiary's 
employment while he worked at her restaurant, we do not find the record to demonstrate that the 
experience he acquired during this period was in the offered position of food service manager, the 
only employment experience accepted by the Petitioner. 
We also note that the Form G-325A, Biographic Information, submitted by the Beneficiary in 
support of his adjustment of status application reflects that the Beneficiary claimed that he had 
worked as a manager for both and the during the period 
April 1995 to May 1997. Accordingly, we do not find the record to establish the Beneficiary's 
qualifying full-time experience with Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of the evidence submitted in 
support ofthe requested immigration benefit. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
The Beneficiary also stated on the labor certification that, at the time of its filing, he had worked for 
the as a food service manager since November 1, 2002. We will not, however, consider 
this experience in determining whether he is eligible for the offered position. 
The regulation at 20 C.F.R. § 656.17 stipulates that a beneficiary may not qualify for an offered 
position based on employment experience gained with a petitioner unless it is established that the 
work performed by the beneficiary was not "substantially comparable" to the job offered. In 
general, if a petitioner answers "No" to the question in Part J.21. of the labor certification (Did the 
alien gain any of the qualifying experience with the employer in a position substantially comparable 
to the job opportunity requested?), then experience with the employer may be used by a beneficiary 
to qualify for a proffered position as long as the experience was not substantially comparable9 and 
9 A definition of " substantially comparable " is found at 20 C.F.R . § 656.17 : 
5) For purposes of this paragraph (i): 
(b)(6)
Matter of KBJ-C-, Inc. 
the terms of the labor certification at Part H.l 0 provide that applicants may qualify for the job 
opportunity through an alternate occupation. 
In the present case, however, the labor certification filed by the reflects that, while it 
provided a negative response to the question in Part J .21., it indicated in Part H. I 0. that it would not 
accept experience in an alternate occupation. Further, the labor certification reflects that the 
employed the Beneficiary in the offered position of food service manager and that the duties of 
the position, as described by the Beneficiary in Part K. of the labor certification, were the same as 
those of the offered position; as listed in Part H.ll. of the labor certification. Therefore, at the time 
the labor certification was filed, the Beneficiary could not have qualified for the offered position 
based on his employment with the since that experience was gained in a position with 
duties substantially comparable to those of the offered position. As the Beneficiary's experience 
with the would not have qualified him for the offered position as of the labor certification's 
filing date, the Petitioner may not rely on this experience to establish his eligibility in the present 
matter. A petition may not be approved if a beneficiary was not qualified as of the petition's priority 
date. Katigbak, 14 I&N Dec. at 49. 
For the reasons indicated, neither the Beneficiary's prior employment with 
nor that with the provide him with the 24 months of experience in the offered 
position required by the labor certification. 
II. CONCLUSION 
The Petitioner 
has failed to establish that it is a successor-in-interest to the employer that filed the labor 
certification because it has not fully described and documented the transaction transferring ownership of 
the predecessor; it has not demonstrated that the job opportunity will be the same as originally offered; 
and it has not demonstrated that the claimed successor is eligible for the immigrant visa in all respects, 
including whether it and the predecessor possessed the ability to pay the proffered wage for the relevant 
periods and whether the Beneficiary meets the requirements for the proffered job. 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 of Otiende, 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 of KBJ-C-, Inc., ID# 07896 (AAO Oct. 26, 20 16) 
(ii) A "substantially comparable" job or pos1t10n means a job or pos1t10n requmng 
performance of the same job duties more than 50 percent of the time. This requirement can 
be documented by furnishing position descriptions, the percentage of time spent on the 
various duties, organization charts, and payroll records. 
8