dismissed EB-3 Case: Oral Products Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-.F-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 3, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer/wholesaler of oral products for consumers and dentists, seeks to employ 
the Beneficiary as a credit analyst. 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 two years of training or experience. 
The Director, Nebraska Service Center, denied the petition. The Director determined that the 
Petitioner was not the same employer listed on the labor certification and that the labor certification 
employer ceased to exist before the labor certification was filed. The Director concluded that the 
petition was not supported by a valid labor certification. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that a successor-in-interest 
relationship exists and that the original entity was an active business at the time the labor 
certification was filed. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A United States employer may sponsor a foreign national for lawful permanent residence. which is a 
three-part process. First, the U.S. employer must obtain a labor certification. which the U.S. 
Department of Labor (DOL) processes. S'ee 20 C.F.R. § 656, et seq. The employer does so by tiling 
an ETA Form 9089, Application for Permanent Employment Certification. with the DOL. The ETA 
Form 9089 sets forth: (A) the position's job duties, (B) the position's education, experience and 
other special requirements, (C) the required proffered wage, and (D) the position's work location(s). 
In addition, as part of the labor certification, the beneficiary attests to his or her education and 
experience. The date the ETA Form 9089 is filed becomes the --priority date" for the visa petition. 
8C.F.R. §204.5(d). 1 The DOL's role in certifYing the labor certification is set forth at section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). The DOL's approval of the labor certification 
1 The priority date is used to calculate when the beneficiary of the visa petition is eligible to adjust his or her status to 
that of a lawful pcnnanent resident. See 8 C.F.R. § 245.1(g). 
Matter of D-.F-, LLC 
affirms that, "there are not sufficient [U.S.] workers who are able, willing, qualified'' to perform the 
position offered where the beneficiary will be employed, and that employment of such beneficiary vvill 
not '·adversely affect the wages and working conditions of workers in the United States similarly 
employed." !d. The labor certification is valid for 180 days. 
Following labor certification approval, a Petitioner files Form I-140, Immigrant Petition for Alien 
Worker, with U.S. Citizenship and Immigration Services (USCIS) within the labor certification 
validity period. See 20 C.F.R. § 656.30(b)(l): 8 C.F.R. § 204.5. USCIS then examines whether: (A) 
the Petitioner can establish its ability to pay the proffered wage, (B) the degree and/or experience 
required for the position offered matches the petitioned-for classification, and (C) whether the 
beneficiary has the required education, training, and experience for the position offered. 5-:ee INA 
203(b)(3)(A)(ii); 8 C.F.R. § 204.5. 
If the I -140 visa petition is approved, then in the third and final step, the beneficiary would file a 
Form I-485, Application to Adjust Status or Register Permanent Residence, either concurrently with 
the Form I-140 based on a current priority date, or following approval of a Form 1-140 petition and a 
current priority date. See 8 C.F.R. § 245. If the I-485 is approved, this application to adjust status 
will afford the beneficiary lawful permanent resident status. 
The instant petition is accompanied by an approved ETA Form 9089, Application for Permanent 
Employment Certification (labor certification), certified by the DOL. The priority date of the 
petition, which is the date the DOL accepted the labor certification for processing, is June 8, 
2012. See 8 C.F.R. § 204.5(d). 
The issue before us is whether the labor certification employer was an operating business entity at 
the time the labor certification was filed on June 8, 2012, so that a bonafide job opportunity existed. 
The regulation at 20 C.F.R. § 656.3 states, in part: 
Employer means: 
(1) A person, association, tirm, or a corporation that currently has a location within 
the United States to which U.S. workers may be referred for employment and that 
proposes to employ a full-time employee at a place within the United States, or the 
authorized representative of such a person, association, firm, or corporation. An 
employer must possess a valid Federal Employer Identification Number (FEIN). For 
purposes of this definition, an "authorized representative" means an employee of the 
employer whose position or legal status authorizes the employee to act for the 
employer in labor certification matters. A labor certification can not be granted for an 
Application for Permanent Employment Certification filed on behalf of an 
independent contractor. 
A labor certification is only valid for the particular job opportunity stated on the ETA Fonn 9089. 
S'ee 20 C.F.R. § 656.30(c)(2). 
2 
(b)(6)
Matter of D-.F-, LLC 
with Federal Employer Identification Number (FEIN) filed the labor 
certification on June 8, 2012. with FEIN the Petitioner, filed the Form 
1-140 on December 18, 2014. The Petitioner asserts that it is the successor entity to the labor 
certification employer.2 In support of its statement that the Petitioner is successor­
in-interest, the record contains tax returns and corporate documents that reflect that: 
• final tax return lists the end date of its fiscal year as May 15, 2012; 
• was merged into on 20 12; and 
• changed its name to the Petitioner on 2012 . 
The record of proceedings demonstrates that . was a New York corporation. The New 
York Secretary of State Division of Corporations Corporation and Business Entity database lists 
as inactive. See NYS Department of State Division of Corporations Entity Information. 
www.dos.state .ny.us (accessed April 21. 2016). The Petitioner states that never filed 
a certificate of dissolution and was therefore an active entity at the time the labor certification was 
filed. The Petitioner asserts that was still engaging in ''wind down"' activities and was 
legally permitted to do so until at least 30 days after the merger. The Petitioner cites section 906 of 
the New York Business Corporation Law in support of this assertion. New York Business 
Corporation Law§ 906 (McKinney. 2012), provides that: 
Effect of merger or consolidation. (a) Upon the filing of the certificate of merger or 
consolidation by the department of state or on such date subsequent thereto, not to 
exceed thirty days, as shall be set forth in such certificate, the merger or consolidation 
shall be effected. 
The record suggests that terminated activities on , 2012, as its 2011 IRS Form 
1120 was filed with a tax year of January 2. 2012 to 2012, and no 2012 tax return was 
submitted. The Petitioner's 2012 federal tax return reflects that it commenced filing on 
2012. The Petitioner has not provided evidence of any business activity that 
conducted after 2012, including ·'wind down" activities. The Petitioner cannot meet the 
burden of proof simply by claiming a fact to be true, without supporting documentary evidence. 
Matter of Soffici. 22 I&N Dec. 158. 165 (Comm 'r 1998) (citing Matter of 7i·easure Crc(/i l~{ 
California, 14 I&N Dec. 190 (Reg' l Comrn'r 1972)); see also Matter <~( Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). The Petitioner must support assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe. 25 I&N Dec. at 376. 
2 Considering Matter of Dial Auto and the generally accepted definition of successor-in-interest, a petitioner may 
establish a valid successor relationship for immigration purposes if it satisfies three conditions. lvfatter of Dial Auto 
Repair Shop. Inc., 19 I&N Dec. 481 (Comm 'r 1986). First, the petitioning successor must fully describe and document 
the transaction transferring ownership of all, or a relevant part of, the beneficiary's predecessor employer. Second , the 
petitioning successor must demonstrate that the job opportunity is the same as originally otfered on the labor 
certification. Third, the petitioning successor must prove by a preponderance of the evidence that it is eligible for the 
immigrant visa in all respects . 
3 
(b)(6)
Matter of D-. F-. LLC 
The record of proceedings includes copies of the Beneficiary's paychecks, issued bi-weekly with a 
gross pay of $2884.62. The record reflects that . issued the Beneficiary's last paycheck 
on May 30, 2012 (pay period May 13 to May 26) and the Petitioner issued the Beneficiary's next 
paycheck on July 11, 2012 (pay period June 24 to July 7). The record does not contain any 
paycheck issued to the Beneficiary by either entity for the pay periods from May 27 to June 23. 
Although two paychecks issued in June 2012 appear to be absent from the record, we note that the 
first paycheck the Petitioner issued on July 11, 2012 lists a ''gross pay year to date" of $8653.86. 
This amount matches the Beneficiary's gross pay from May 27 to July 7 ($2884.62 for three pay 
periods). Therefore. it appears that the Beneficiary's employment with ended on May 
26, 2012 and began with the Petitioner on May 27, 2012. This is consistent with the termination of 
before the labor certification was filed on June 8, 2012. 
Further, California SOS Business Entity Details for show that a Certificate of 
Surrender was filed on 2012. Even if was still operating in New York, it had 
surrendered its right to do business in California, the State in which the proffered position is located. 
While the evidence in the record reflects that succeeded all evidence 
reflects that, at the time the labor certification was filed, no longer continued to 
operate to a degree which required a permanent, full-time credit analyst, the proffered position listed 
on the labor certification. As such the record does not reflect that a bona .fide job offer with 
in California existed at the time the labor certification was filed on June 8, 2012. As the 
Form I-140 is not supported by a valid labor certification as required by 8 C.F.R. §§ 204.5(a)(2) and 
204.5(1)(3)(i), the appeal must be dismissed. 
II. CONCLUSION 
In summary, the Petitioner did not establish that the labor certification employer was a valid business 
entity at time the labor certification was filed. The petition is not supported by a valid labor 
certification as required by 8 C.F.R. §§ 204.5(a)(2) and 204.5(1)(3)(i). The Director's decision 
denying the petition is affirmed. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act 8 U.S.C. § 1361; Matter ofBrantigan, 11 I&N Dec. 493 
(BIA 1966); Matter of Otiende. 26 I&N Dec. 127, 128 (BIA 2013 ). Here, that burden has not been 
met. 
ORDER: The appeal is dismissed. 
Cite as Matter (~fD-.F-. LLC, ID# 16657 (AAO May 3. 2016) 
4