dismissed EB-3 Case: Manufacturing

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: CALIFORNIA SERVICE CENTER 
 Date: 
WAC 04 257 53055 
 SEP 2 6 2m 
Petition: Immigrant 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. § 1153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 257 53055 
Page 2 
DISCUSSION: The Director, California Service Center, denied the preference visa petition that 
is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a manufacturing company. It seeks to employ the beneficiary permanently in 
the United States as a sewing supervisor. As required by statute, a Form ETA 750 Application 
for Alien Employment Certification approved by the Department of Labor accompanied the 
petition. The employer named on that Form ETA 750 labor certification, however, is not the 
petitioner. The director determined that the petitioner had not established that it is the successor- 
in-interest to the employer named on the labor petition and denied the petition accordingly. 
On appeal, counsel submits a statement. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
3 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 
skilled labor (requiring at least two years training or experience), not of a temporary nature, for 
which qualified workers are not available in the United States. 
The Department of Labor does not issue a Form ETA 750 labor certification to a potential 
employeeheneficiary, but to a potential employertpetitioner. Under certain circumstances, the 
petitioner may substitute a beneficiary. The beneficiary is not permitted, however, to substitute a 
petitioner. An exception to this rule is triggered if the petitioner is purchased, merges with 
another company, or is otherwise under new ownership. The successor-in-interest must submit 
proof of the change in ownership and of how the change in ownership occurred. It must also 
show that it assumed all of the rights, duties, obligations, and assets of the original employer and 
continues to operate the same type of business as the original employer. See Matter of Dial 
Repair Shop 19 I&N Dec. 481 (Comm. 1981). 
The employer named on the approved Form ETA 750 in this case is Advanced Thermal Products, 
Incorporated. The petitioner on the Form 1-140 petition is 
counsel submitted no evidence th-s the true 
within the meaning of Matter ofDial Auto Repair Shop, Inc., supra. 
On October 17, 2004 the California Service Center issued a notice of intent to deny in this 
matter. That notice observed that the record contained no evidence that the substituted petitioner 
is entitled to rely on the labor certification issued to the previous employer. 
In response counsel submitted an unsigned letter dated November 15, 2004 and addressed "To 
Whom It May Concern." Although that letter appears on plain stationery it is headed, 
"Employer's Letterhead." The body of that letter states that the substituted petitioner has 
"assumed all [of the original petitioner's] rights, duties, obligations and assets," operates the 
same type of business in the same city, and that the terms of the job offer are unchanged. 
1-140 petition, WAC 01 008 501 15, was previously submitted by 
for the instant beneficiary. That petition was approved on June 
21, 2001. Today's decision, however, concerns only WAC 04 257 53055, filed by 
September 2 1,2004. On 
WAC 04 257 53055 
Page 3 
Finally, that unsigned unattributed letter states that the original petitioner, 
'is not longer an independent entity and has complete 
On December 13, 2004 the Director, California Service Center, issued the decision in this matter. 
The director noted that a search of California corporations revealed that 
the original petitioner in this 
decision further reveals that a phone call from USCIS to 
 revealed 
that it continues in business. The director found that 
that the substituted petitioner is the original petitioner's true successor within the meaning of the 
decision in Dial Auto Repair Shop, Inc., supra. 
On appeal counsel stated, 
The Petitioner has already furnished to your office a statement from the new 
owner that he has assumed all of the rights, duties, obligations and assets of the 
original employer. 
Counsel did not address the evidence that, contrary to the assertion of the unsigned unattributed 
letter, the only evidence in the record pertinent to the substitute petitioner's successorship, the 
original petitioner is still in existence and continues to do business. This office finds that the 
unattributed unsigned statement is insufficient to overcome the evidence showing that the 
original petitioner is still in existence and the substituted petitioner is not, therefore, its true 
successor within the meaning of Dial Auto Repair Shop, Inc., supra.2 The petition was correctly 
denied on that basis. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 9 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
2 Even the fact that Insultech did not acquire rights to name is sufficient to 
demonstrate that the substituted petitioner did not acquire all of the original petitioner's assets and is not, 
therefore, its true successor.