dismissed EB-3 Case: Jewelry Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF O-E- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 2, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a jewelry manufacturer, seeks to employ the Beneficiary as a jewelry inspector 
( quality control). It requests her 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 employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a job requiring less than two years of 
training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that, 
contrary to the Act and Department of Homeland Security regulations, the Petitioner did not 
demonstrate the validity of the accompanying certification from the U.S. Department of Labor 
(DOL). Specifically, the Director found that the Petitioner did not establish itself as a successor in 
interest of the employer that filed the labor certification application. 
On appeal, the Petitioner submits additional evidence and asserts that it has established its 
acquisition of all the labor certification employer's assets and liabilities. The Petitioner contends 
that DOL certified the application after learning of the company's successorship and that the 
Director unfairly demanded excessive documentation of an informal transaction. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an unskilled worker generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, a prospective employer must first obtain DOL 
certification. 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 an offered position, 
and that employment of a foreign national will not harm wages and working conditions of U.S. workers 
with similar jobs. Id. 
If DOL approves an offered 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 
Matter of O-E- Ltd. 
the Act, 8 U.S.C. § 1154. Among other things, USCIS determines whether a beneficiary meets 
requirements of an offered position and a requested visa classification. If USCIS grants 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. 
II. THE VALIDITY OF THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for an unskilled worker 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 petitioner may use a labor certification filed by another employer only if the petitioner establishes 
itself as a successor in interest of the employer. Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 
481 (Comm'r 1986). For immigration purposes, a successor must: 1) demonstrate that, except for 
the change of employer, the job opportunity remains the same as listed on the labor certification; 2) 
establish its eligibility as a petitioner, including the abilities of it and the predecessor to continuously 
pay the position's proffered wage from the petition's priority date onward; and 3) fully describe and 
document the transaction(s) by which it acquired the predecessor. Id. at 482-83. 
The evidence provided must show that the successor not only purchased the 
predecessor's assets but also that the successor acquired the essential rights and 
obligations of the predecessor necessary to carry on the business in the same manner 
as the predecessor. 
Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic Ops., USCIS HQ 70/6.2, 
Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field 
Manual (AFM) Update to Chapter 22.2(b)(5)(AD09-37) 8 (Aug. 6, 2009). 
Here, the employer filed the labor certification application in August 201 7. The Petitioner claims 
that it acquired all of the employer's assets and liabilities in January 2018, before DOL certified the 
application in May 2018. 
A. The Petitioner's Description and Documentation of the Transaction 
The Petitioner's chief executive officer (CEO) stated that it and the labor certification employer 
"merge[ d]." As evidence, the Petitioner submitted copies of payroll records, workers' compensation 
insurance forms, and statements from its CEO and two shareholders. The CEO and shareholders 
purportedly served in the same roles with the labor certification employer, which also shared its location 
with the Petitioner. 
The payroll records indicate that the labor certification employer paid the Beneficiary and her co­
workers in 2017, while the Petitioner paid them in 2018. This suggests a movement of employees from 
one business to the other but does not indicate that a legal transaction took place. The payroll records 
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Matter of O-E- Ltd. 
also do not "fully explain the manner by which the petitioner took over the business." Matter of Dial 
Auto, 19 I&N Dec. at 482. 
The insurance forms indicate that, as of January 2018, the labor certification employer cancelled its 
workers' compensation policy and the Petitioner obtained one. The employer's form also states that 
the company went "Out of Business." The insurance forms indicate that the labor certification 
employer ceased business, but do not support a merger's occurrence. Also, contrary to case law and 
USCIS policy, they do not fully describe the transaction or confirm the Petitioner's acquisition of rights 
and obligations needed to carry on the labor certification employer's business. 
The statements of the Petitioner's CEO and shareholders are also insufficient. The statements do not 
indicate the structure of the claimed merger, the rights or obligations transferred, or whether the 
Petitioner paid cash or other consideration for the stock of the labor certification employer. Also, two 
New York corporations planning to merge must adopt written merger plans and file them with state 
authorities. N.Y. Bus. Corp. §§ 902(a), 903(a). Upon merging, the surviving corporation ( or the 
newly created entity) must also file a certificate of merger with state authorities. N.Y. Bus. Corp. 
§§ 904(a), 906(a). The Petitioner's evidence, however, lacks copies of merger plans or certificates, nor 
do online government records indicate the filing of any. See N.Y. Dep't of State, Div. of Corps., State 
Records & UCC [Uniform Commercial Code], https://www.dos.ny.gov/corps/ bus_entity_search.html 
(last visited May 15, 2019). The record does not explain the absence of merger documentation. See 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of 
record by independent, objective evidence pointing to where the truth lies). 
On appeal, the Petitioner submits a joint memorandum from its CEO and shareholders. The memo 
describes the labor certification employer as "the payroll company for the employees of [the 
Petitioner]." It states that the CEO and shareholders "orally agreed to transfer the employee payroll" 
from the employer to the Petitioner and then to "close" the employer. On the labor certification, the 
Beneficiary described the employer as a jewelry manufacturer. In response to the Director's request for 
additional evidence (RFE), the Petitioner's CEO also stated: "Both companies are engaged in the same 
type of jewelry manufacturing business." The memo, however, indicates that the employer served only 
as a payroll company, apparently issuing wages to the Petitioner's workers without making jewelry of 
its own. The memo therefore casts additional doubt on the previously described "merger" between the 
Petitioner and the labor certification employer. See Matter of Ho, 19 I&N Dec. at 591 (stating that 
doubt cast on any aspect of a petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence). 
Moreover, if the labor certification employer served merely as a payroll company, the record would not 
establish the Petitioner as its successor. A successor "must continue to operate the same type of 
business as the predecessor." Neufeld Memo, at 8. Here, the record identifies the Petitioner as a 
jewelry manufacturer. The record therefore does not demonstrate that the Petitioner would limit its 
operations to payroll processing as the labor certification employer apparently did. Also, the record 
does not establish that the staff of the labor certification employer, a payroll processor, would have 
included a jewelry inspector. The joint memo from the Petitioner's CEO and shareholders therefore 
does not establish the company as the successor of the labor certification employer. 
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Matter of O-E- Ltd. 
The Petitioner argues that it informed DOL of its acquisition of the labor certification employer before 
the agency certified the application. DOL, however, only determines the successor of a labor 
certification employer if its ownership changed between the start of recruitment for an offered position 
and the filing of a labor certification application. DOL, "OFLC [Office of Foreign Labor Certification] 
Frequently Asked Questions and Answers," Advertisement Content, 10, 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited May 15, 2019). Here, the 
claimed ownership change occurred after the filing of the labor certification application. Thus, 
based on the timing of the claimed transaction, users, rather than DOL, makes the successorship 
determination. 
The Petitioner also argues that, by requiring additional evidence of its acquisition of the labor 
certification employer, users "discriminate[s] against small companies which often make changes 
orally but do not have [ additional documentary] evidence." The Petitioner notes that acceptable 
documentary evidence "may include, but is not limited to:" contracts of sale; mortgage closing 
statements; annual reports of publicly traded successors; newspaper articles; and audited financial 
statements. Neufeld Memo, at 7 ( emphasis added). 
Contrary to the Petitioner's argument, however, users asked the company to provide only what 
governing case law requires. As previously discussed, a successor must "fully explain the manner by 
which [it] took over the business." Matter of Dial Auto, 19 r&N Dec. at 482. The Petitioner has 
submitted documentation showing that the labor certification employer ceased business and that 
employees moved from one company's payroll to another's. But it has not fully described or actually 
documented the transaction as case law requires. The record does not indicate the structure of the 
claimed merger, the assets or liabilities transferred, or whether the merger involved cash or other 
consideration. The Petitioner also has not explained the absence of merger documentation required by 
New York law, or the inconsistencies of record regarding the nature of the labor certification 
employer's business. See Matter of Ho, 19 r&N Dec. at 591. As such, the Petitioner has not 
demonstrated that it qualifies as a successor or that the petition is supported by a valid labor 
certification. We will therefore affirm the petition's denial. 
B. Ability to Pay the Proffered Wage 
Although unaddressed by the Director, the record also does not demonstrate the continuous abilities of 
the labor certification employer and the Petitioner to pay the proffered wage of the offered position from 
the petition's priority date onward. Matter of Dial Auto, 19 r&N Dec. at 482; Neufeld Memo, at 3. 
Evidence of ability to pay must include copies of annual reports, federal tax returns, or audited financial 
statements. 8 C.F.R. § 204.5(g)(2). 
Here, the labor certification states the proffered wage of the offered position of jewelry inspector as 
$18.94 an hour, or $34,470.80 a year based on a 35-hour work week. The petition's priority date is 
August 2, 2017, the date DOL accepted the labor certification application for processing. See 8 C.F.R. 
§ 204.5(d) (explaining how to determine a petition's priority date). 
The Petitioner submitted an IRS Form W-2, Wage and Tax Statement, for 2017 and copies of payroll 
records in 2017 and 2018. These documents indicate that the labor certification employer paid the 
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Matter of O-E- Ltd. 
Beneficiary in 2017 and that the Petitioner paid her in 2018. Contrary to 8 C.F.R. §204.5(g)(2), 
however, the record lacks required evidence of the labor certification employer's ability to pay in 2017 
and the Petitioner's ability to pay in 2018. The Petitioner therefore has not demonstrated the continuous 
ability of it and the labor certification employer to pay the proffered wage from the petition's priority 
date onward. 
The lack of regulatory required evidence prevents a finding that the labor certification employer or the 
Petitioner have the ability to pay the proffered wage. Moreover, discrepancies in the submitted wage 
records raise questions about the credibility of the documentation. Records indicate that the U.S. 
government did not issue the Beneficiary the Social Security number that appears on her Form W-2 and 
payroll records for 2017 and 2018. The discrepancy in the Social Security number casts doubt on the 
validity of the evidence. See Matter of Ho, 19 l&N Dec. at 591 (requiring a petitioner to resolve 
inconsistencies of record by independent, objective evidence pointing to where the truth lies). 
Thus, in any future filings in this matter, the Petitioner must submit copies of annual reports, federal tax 
returns, or audited financial statements of the labor certification employer for 2017 and of itself for 
2018. The Petitioner may also submit additional evidence of the abilities of it and the labor certification 
employer to pay the proffered wage, including proof of wages paid to the Beneficiary during those 
years and materials supporting factors stated in Sonegawa. The Petitioner must also explain the 
discrepancy in the Beneficiary's Social Security number and demonstrate that the companies paid her in 
2017 and 2018 as claimed. 
111. CONCLUSION 
The record on appeal does not demonstrate the validity of the accompanying labor certification. The 
Petitioner has not established itself as a successor in interest of the employer that filed the 
certification application. We will therefore affirm the Director's decision. A petitioner bears the 
burden of establishing eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. 1361. 
Here, the Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of O-E-Ltd., ID# 4703745 (AAO July 2, 2019) 
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