dismissed EB-3 Case: Landscaping

rdentifying data deleted to 
pmnt clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC-02-087-54736 Office: CALIFORNIA SERVICE CENTER Date: 2 1 2006 
PETITION: 
 Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. § 1 153(b)(3) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~obert P. Wiemann, Director 
Administrative Appeals Office 
WAC-02-087-54376 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a landscaping and gardening service. It seeks to employ the beneficiary permanently in the 
United States as a landscape gardener. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor, accompanied the petition. The name of the 
employer on the ETA 750 is a different name than the name of the petitioner in the instant petition. The 
director determined that the petitioner had not established that it had the continuing ability to pay the 
beneficiary the proffered wage beginning on the priority date of the visa petition and denied the petition 
accordingly. 
Section 203(b)(3)(A)(i) of the Imgration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(i), provides 
for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing slulled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 9 204.5(g)(2) states: 
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. 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 appropriate cases, additional 
evidence, such as profitlloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
Employment-based immigrant petitions depend on priority dates. A petition's priority date is date the Form 
ETA 750 was accepted for processing by any office within the employment system of the Department of 
Labor. See 8 C.F.R. 9 204.5(d). The priority date in the instant petition is December 1, 1997. The proffered 
wage as stated on the Form ETA 750 is $15.00 per hour, which amounts to $31,200.00 annually. On the 
Form ETA 750B, signed by the beneficiary on October 30, 1997, the beneficiary claimed to have worked for 
the employer which submitted the ETA 750 beginning in October 1987 and continuing until the date of the 
ETA 750B. The ETA 750 was certified by the Department of Labor on August 2,2001. 
The 1-140 petition was submitted on January 14, 2002. On the petition, in the item for the date on which the 
petitioner was established, the petitioner wrote "January 1973, February 2000." (1-140 petition, Part 5). On 
the petition, the petitioner claimed to currently have 200 employees. The items on the petition for gross 
annual income and for net annual income were left blank on the petition. With the petition, the petitioner 
submitted supporting evidence. 
In a request for evidence (RFE) dated March 26, 2002, the director requested additional evidence to show that 
the petitioner is a successor in interest to the employer which filed the ETA 750 application for alien labor 
certification. The director also requested evidence pertaining to a change of address from that shown on the 
WAC-02-087-54376 
Page 3 
ETA 750 to the address shown on the 1-140 petition. The director also requested evidence relevant to the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date. Finally, the director 
requested copies of Form W-2's and Form W-3's of the petitioner for all its employees for the years 1997, 
1998, 1999,2000 and 2001. 
In response to the WE, the petitioner submitted additional evidence. The petitioner's submissions in response 
to the RFE were received by the director on June 19,2002. 
In a decision dated July 25, 2002, the director determined that the evidence did not establish that the petitioner 
had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence, and denied the petition. 
On appeal, the petitioner submits a brief and additional evidence. The petitioner states on appeal that the 
petitioner was formerly known by the name which appears as the employer's name on the ETA 750, and that 
the petitioner has consistently paid wages to the beneficiary. The petitioner states that copies of tax returns 
requested by the director are in the possession of the petitioner's corporate attorney and that the petitioner has 
been unable to obtain complete copies of the tax returns requested by the director. The petitioner states that 
the beneficiary has been employed by the petitioner since 1988 and states that copies of the beneficiary's W-2 
forms and copies of the beneficiary's personal income tax returns are sufficient to establish the petitioner's 
ability to pay the proffered wage. 
CIS electronic records indicate that the record of proceeding was transmitted to the AAO on September 20, 
2002. 
The non-record side of the file contains a memorandum dated February 19, 2004 from the AAO to the 
California Service Center stating that the record of proceeding was then incomplete and that the Form 1-140 
could not be located in the file. The memorandum indicates that the record of proceeding was being returned 
to the California Service Center. 
The director issued an RFE dated July 6, 2004 stating that in order to proceed with the petitioner's appeal a 
copy of the original 1-140 petition was needed. In the RFE the director also stated that as of February 3, 2004, 
CIS records indicate that the beneficiary was deported. The director stated that if the petitioner wished to 
withdraw its appeal, it should submit a letter requesting a withdrawal. 
In response to the RFE dated July 6, 2004 the petitioner submitted a photocopy of the 1-140 petition. The 
petitioner also submitted a letter dated August 24, 2004 signed by its vice-president for operations and by an 
official with an immigration services firm. The letter states that the petitioner does not wish to withdraw its 
appeal. In the letter, the petitioner notes that it has previously submitted documentation requested by CIS. 
The petitioner states that the employer changed its name from that appearing on the ETA 750 to the name 
appearing on the 1-140 petition, but that the company remains the same. 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
An initial issue in the instant appeal concerns whether the petitioner is the same company which filed the 
ETA 750, and, if not, whether the petitioner is a successor in interest to that company. 
WAC-02-087-54376 
Page 4 
The ETA 
Residential 
Inc." 
750 Application for Alien Employment Certification was filed 
, ." The petitioner's name is ' 
The record contains a copy of a letter dated September 17, 2001 from 
 the petitioner's vice 
president for operations, addressed to the U.S. Department of Labor, Employment and Training 
kdministration. The record order indicates that that letter was submitted in evidence for the first time in 
response to the RFE dated July 6,2004. The September 17,2001 letter states in pertinent part as follows. 
I am writing on behalf of [the beneficiary's] Application for Alien Labor Certification. 
I am writing as we have undergone some changes within the business we had been em~loved 
u " . d 
with. We were previously employed with Residential and Commercial 
Development Corporation when we started application. It was unfortunate 
but south Shore had stopped doing businessand ultimately closed. 
reopened as a new corporation under the new name 
I am still [the beneficiary's] immediate supervisor 
support his efforts to obtain his certification in any way that I can. 
(Letter from V.P. Operations, September 17,2001, at 1). 
The record also contains a copy of an undated letter fromwhich was submitted on June 19, 
2002 in response to the earlier RFE dated March 26, 2002. That letter states in pertinent part as follows: 
I am writing on behalf of [the beneficiary] and his application for Alien Labor Certification. 
When I started this process as [the beneficiary's] sponsor several years ago we were doing 
business as Residential and Commercial Development Corporation. We have 
since close m and started an new [sic] corporation by the name of 
-1 I have enclosed a copy of the new contractors license to 
the change. 
The purpose of this note is to reconfirm my dedication to sponsor [the beneficiary] through 
this process. As long as [the beneficiary] is permitted to remain in the United States he will 
always have a place to work for me. 
Later in the letter, in explanation of the petitioner's inability to provide certain tax documents which had been 
requested by the director, Mr. -s the following: 
The financial records are no longer in our possession for 
Commercial Development Corp. The [sic] are in the possession o it s sic ttomey. am 
I can offer at this time. 
land 
enclosing a copy of an extension of the tax return for the year 2000. I am afraid this is all that 
WAC-02-087-54376 
Page 5 
(Letter from Teny 
 June 17,2002, at 1). 
The record also c n i 
 a lett r dated August 24, 2004, submitted in response to the RFE of July 6, 2004, 
jointly signed by 
 and by an official from an immigration services firm. That letter states in 
pertinent part as follows: 
The petitioning 
 a bonifide [sic] offer of full time 
employment to the 
 landscape gardener since the pilot 
program in affect [sic] during 1997. 
the US Department of Labor, on August 2, 
the name of the business only to 
(Letter from 
 August 24,2004, at 1). 
The September 17, 2001 letter states that the 
 Residential and Commercial Development 
Corporation stopped doing business and was closed, and that the petitioner is a new corporation. 
Similarly, the undated letter submitted on June 19, 2002 states that the corporation which filed the ETA 750 
was closed an 
 t~tioner is a new corporation. Moreover, the statement in that letter that tax 
documents of 
 e Residential and Commercial Development Corp. were unavailable to the 
o~erations is further evidence that the ~etitioner is a se~arate cornoration from 
~esLdentia1 and cdmmercial Development Corp. 
The foregoing information is inconsistent with the statement in the August 24, 2004 letter that the employer 
- - 
changed only its name, 
 August 24, 2004 letter the 
prior name is stated as ' 
 Residential and Commercial 
Development 24,2004, at 1). 
The record contains partial copies of Form 1120 U.S. Corporation Income Tax Returns of 
Residential and Commercial Development Corp. for 1996, 1997 and 1998. The employer 
- - 
number on those tax returns is a number ending in the final three digits "788." The record also contains 
copies of Form W-2 Wage and Tax Statements of the beneficiary showing compensation received from that 
corporation for the years 1988 through 1999. On each of those documents the employer identification 
number is that same number ending in "788." The record also contains a copy of a Form W-2 of the 
beneficia 
 for 2000. The name of the employer on the copy of that Form W-2 is partially obscured, with 
only @ 1999" visible, and the federal employer identification number is almost completely obscured, 
except or an apparent final digit of "8." On the Form W-2 for 2000, the employer's California state I.D. 
number ends with the three digits "07-5" and is the same state I.D. number as that which appears on the Form 
W-2's for 1988 through 1999. 
The record also contains a copy of the beneficiary's Form W-2 Wage and Tax Statement for 2001, showing 
compensation received from the petitioner. The federal employer identification number on that Form W-2 is 
a number with the final three digits of "790." The employer's California state I.D. number is a number with 
the final three digits of "82-3." 
WAC-02-087-54376 
Page 6 
The differences in federal and state employer identification numbers between the Form W-2's for 1988 to 
2000 on one hand and the Form W-2 for 200 1 on the other are further evidence that the petitioner is a separate 
corporation Erom the employer which filed the ETA 750. 
Most of the above evidence indicates that the employer on the ETA 750 and the petitioner are two separate 
corporations. Only in the letter dated August 24, 2004 does the petitioner assert that the employer on the 
ETA 750 merely changed its name and that the company remains the same. 
The Board of Immigration Appeals, in Matter ofHo, 19 I&N Dec. 582, 591-592 (BIA 1988), has stated, "It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice." The record contains no explanation for the inconsistencies in 
the evidence noted above. No copies of articles of incorporation were submitted for ~esidential 
and Commercial Development Corp. or for the petitioner. Nor were an co ies of articles of amendment 
submitted which might show a legal name change from Residential and Commercial 
Development Corp. to the petitioner's name. 
For the foregoing reasons, the evidence fails to establish tha 
 Residential and Commercial 
Development Corp. is the same corporation as the petitioner. 
The record also fails to establish that the petitioner is a successor in interest to 
 esidential and 
Commercial Development Corp. That status requires documentary evidence 
all of the rights, duties, and obligations of the predecessor company. See Matter of Dial Auto Repair Shop, 
Inc., 19 I&N Dec. 48 1 (Comm. 1986). 
The address of the petitioner as shown on the beneficiary's Form W-2 Wage and Tax Statement for 2001 is 
the same address as is shown on the prior Form W-2's issued esidential and Commercial 
Development Corp., and the same address which appears for tha corpora ion on the ETA 750. Nonetheless, 
the fact that the petitioner is doing business at the same location as the purported predecessor does not 
establish that the petitioner is a suc~essor-in-intere 
 d lacks any-evidence that the petitioner has 
assumed any of the rights, duties or obligations of 
 Residential and Commercial Development 
Corp. 
For the foregoing reasons, the Form ETA 750 submitted by the employer ' ~esidential 
(Commercial Development Corp.)" and approved by the Department of Labor for t a corporation is not a 
Form ETA 750 which was submitted by the petitioner or which was approved by the Department of Labor for 
the petitioner. 
The regulations at 8 C.F.R. §$ 204.5(a)(2) and 204.5(1)(3)(i) require that any 1-140 petition filed under the 
preference category of INA $ 203(b)(3) be accompanied by a labor certification. The record in the instant 
petition lacks a labor certification issued to the petitioner or to an employer of which the petitioner is a 
successor in interest. The petition therefore must be denied. 
In the RFE dated March 26, 2002, the director requested additional evidence to show that the petitioner is a 
successor in interest to the employer which filed the ETA 750 application for alien labor certification. The 
director also requested evidence pertaining to an apparent change of address from that shown on the ETA 
750. The evidence submitted by the petitioner in response to that RFE apparently satisfied the director, since 
the director did not again discuss those issues in his decision, but rather treated the evidence pertaining to 
WAC-02-087-54376 
Page 7 
Residential and Commercial Development Corp. as evidence pertaining to the petitioner. The 
director then found that the evidence failed to establish the petitioner's ability to pay the proffered wage 
during the vears at issue in the instant ~etition. Nonetheless. for the reasons discussed above. the director's 
" 
implicit finbing thaesidential and commercial Development Corp. is the same'corporation as 
the petitioner is not supported by the evidence in the record. 
Although the analysis of the director was incorrect, the director's decision to deny the petition was correct, for 
the reasons stated above. The assertions of the petitioner on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.