dismissed EB-3 Case: Semiconductor Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 08364245 
Motion on Administrative Appeals Office Decision 
Form I-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 21, 2020 
The Petitioner, a semiconductor manufacturer, seeks to employ the Beneficiary as a component design 
engineer. It requests professional classification for the Beneficiary under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. 
§ 1153(b )(3)(A)(ii). This employment-based "EB-3" immigrant classification allows a U.S. employer 
to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition . The Director detennined that the 
Petitioner did not establish that it is the successor-in-interest to the company that filed the labor 
certification, and therefore could not use the labor certification in support of its petition . 
The Petitioner filed an appeal, which we summarily dismissed on the grounds that it did not identify 
specifically any erroneous conclusion of law or statement of fact in the unfavorable decision and was 
not supported by any brief or additional evidence . The Petitioner filed a combined motion to reopen 
and motion to reconsider, pointing out that a brief and additional documentation had actually been 
timely submitted in support of the appeal. These materials, along with evidence of their timely 
delivery, were resubmitted with the motion(s). Accordingly, we will reopen this proceeding and 
consider the Petitioner's appeal on the merits . 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the requested benefit. 
See section 291 of the Act, 8 U.S.C. § 1361. The Petitioner asserts that the evidence of record 
establishes its successor-in-interest relationship with the company that filed the labor certification, and 
therefore its eligibility for the requested immigration benefit. 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process . First, an employer obtains 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). By approving the labor certification, the DOL certifies that 
there are insufficient U.S. workers who are able, willing, qualified, and available for the offered 
position and that employing a foreign national in the position will not adversely affect the wages and 
working conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, 
the foreign national may 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. ANALYSIS 
A petition for a professional must generally include a valid, individual labor certification. See 8 C.F.R. 
§ 204.5(1)(3)(i). A labor certification remains valid only for the particular job opportunity, the 
particular beneficiary, and the area of intended employment stated on the document. See 20 C.F.R. 
§ 656.30( C )(2). 
A business may use another employer's labor certification if it establishes itself as the employer's 
successor-in-interest. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986). 
Dial Auto discussed three factors that must be considered in determining whether a valid successor­
in-interest relationship exists between the labor certification employer and the 1-140 petition employer. 
As interpreted and refined by USCIS in a subsequent policy memorandum (the "Neufeld 
Memorandum" in 2009) 1 which revised the Adjudicator's Field Manual, the three factors that must be 
demonstrated by a petitioner claiming to be the successor-in-interest to the labor certification employer 
are the following: (1) the job opportunity offered by the petitioner must be the same as that originally 
offered on the labor certification; (2) the petitioner must establish its eligibility for the immigration 
benefit in all respects, including the eligibility of the labor certification employer such as its ability to 
pay the proffered wage as of the date the labor certification application was filed with the DOL; and 
(3) the petitioner must folly describe and document the transfer of ownership from the labor 
certification employer and its assumption by the petitioner. In this case only the third factor is at issue. 
The record shows that the labor certification application for the proffered position of component 
design engineer was filed byl I, a wholly owned subsidiary 
of the Petitioner, in December 2015. After its approval by the DOL in April 2016 the labor 
certification was initially submitted to USCIS with an immigrant visa petition filed by c:::J in 
September 2016 requesting advanced degree professional classification for the Beneficiary. That 
petition was approved in May 2017. The Petitioner states that it filed the current 1-140 petition, 
supported by the same labor certification, because there is greater immigrant visa availability for 
beneficiaries in the EB-3 classification (which includes professionals) than in the EB-2 classification 
(which includes advanced degree professionals). 
When the instant petition was filed in late December 2018 the Petitioner was in the midst of a plan to 
liquidate and absorbLJ its wholly owned subsidiary organized in 2011. In a letter accompanying 
the petition the Petitioner explained that it was taking this measure to simplify and streamline business 
operations, better align its resourrs, aid facilitate the access of transferred employees (including the 
Beneficiary, who had worked for since December 2015) to all required intellectual property and 
1 Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, USCTS, 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) (August 6, 2009), http://www.uscis.gov/legal-resources/policy-memoranda. 
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c=]confidential information. As evidence of the transaction between itself and D the Petitioner 
submitted some documentation with the petition and in response to a request for evidence which, in 
the Director's judgement, "did not indicate that [the Petitioner] acquired the essential rights, duties, 
assets, and obligations necessary to carry on the business in the same manner of the employer (LJ 
listed on the labor certification." Accordingly, the Director concluded that the record did not establish 
that the Petitioner is the successor-in-interest toD that the labor certification obtained by c=J 
could not be used to support the current petition, and that the petition must be denied because it was 
not supported by a valid labor certification. 
On appeal, and~ on motion, the Petitioner submits additional documentation relating to its 
transaction withl__J For the reasons discussed hereinafter, we conclude that the Petitioner has still 
not fully described and documented the alleged transfer of ownership of D and its business 
operations to the Petitioner. 
The record includes copies of the following documents relating to the Petitioner's transaction with 
D 
• An email co□ication in December 2018 from an HR director inD to all 
employees of under the subject "Upcoming Legal Entity Change" advising them 
that "effective January 1, 2019, all employees of I I will be moved intol I I lor in a small number of cases intol ~' The email further 
advised: "For those with pending immigration actions or immigration status: Since 
this is an internal reorganization, in most cases little to no action will be needed to 
maintain your work authorization or permanent residency process .... " 
• An "Affidavit of Immigration Successorship" signed by 1lhe Petitioner's U.S. 
immigration operations manager and dated December 17, 2018, stating that it 
"addresses immigration successorship in general, and the elements of H-1 B 
successorship in particular ... 
1 
arisinJ from the reorganization ofl land 
its wholly-owned subsidiary, ." The affidavit stated, r oe
1
inent part, that: 
"Whereas on or about January 1 2019, D is reorganizing resulting in the 
transfer ofc=J employees into 0 ... [and] the employment of the Transferring 
Employees will not change in any respect material for non-immigrant status or steps in 
the permanent residence process . . . [ and] ~ wishes to be a successor for all 
immigration-related duties and obligations of the Transferring Employees ... Now 
therefore .. Oassumes all rights, obligations, liabilities and undertakings related to 
I I sponsorship of immigrant and non-immigrant processes of the Transferring 
Employees." 
• A._--.=====---,------,---,r-------------------' 
(EIN: .__ ___ _." signed b s president and dated December 30, 2018, stating 
that as of the effective date ofJanua~Ol90and its officers were authorized to 
take all necessary steps to wind upL_js business with the intention of completely 
liquidating and dissolving the company. The Plan charged D with settling its 
3 
liabilities and distributing its assets to a holding company l I .__ ___________ ~I in a series of distributions to be concluded no later 
than three years after the close of the taxable year of the first distribution. The Plan 
also has a provision allowing~s board of directors to "modify, amend, or abandon 
this Plan and the transactions contemplated hereby without farther action by the 
[holding company]. 
• A' 
.__ ______ _." signed by three directors of and dated December 30, 2018, 
declaring that the terms and conditions of the Plan for Complete Liquidation were 
approved, that the process of liquidation and subsequent distribution of assets would 
1
egin tmmediately and be completed as soon as practicable, and that "any officer of 
... is authorized to execute and deliver the Plan and any such modifications, 
additions and deletions in the Plan as are deemed, in their sole discretion, necessary, 
appropriate, or advisable by such officer[ s] ... " 
• A "Certificate" signed byDs secretary and dated January 24, 2019, stating that the 
Liquidation Resolutions of December 30, 2018, "have not been amended, modified, 
revoked or rescinded and remain in foll force and effect as of the date hereof." 
• Invoices dated March 11 and March 30, 2019, which the Petitioner asserts document 
the transfer of assets from D to the Petitioner pursuant to the Liquidation 
Resolutions. 
While the foregoing materials indicate an intention by the Petitioner and~ to liquidate the 
subsidiary and absorb its business into the parent's operations, the record contains no definitive 
contract or other agreement between the two companies to effectuate this transaction. As explained 
in the Neufeld Memorandum on page 8, contractual agreements or other arrangements between two 
or more business entities to conduct business together or provide services to each other, without the 
transfer of the ownership of one to another, do not create a valid successor-in-interest relationpb.in..f.or 
the purposes of an I-140 petition. In this case, moreover, the liquidation plan signed b)L._j' s 
president on December 30, 2018, gave Os board of directors specific authority to "modify, amend, 
or abandon this Plan and the transactions contemplated hereby." The unanimous consent resolution 
of Os directors that same date confirmed that any one of them ~thorized to make 
modifications, additions and deletions to the Plan. Thus, tie liqrdation of and its absorption 
into the Petitioner remained subject to unilateral reversal by 2 While 's secretary certified 
on January 24, 2019, that the liquidation resolutions of December 30, 2018, had not ~mended, 
modified, revoked, or rescinded as of that date, they remained subject to such action byl_Jany time 
thereafter. The Petitioner cites the invoices of March 2019 as evidence that asset transfers fromD 
to the Petitioner were occurring pursuant to the liquidation plan. The invoices do not state, however, 
that the asset transfers were pursuant to a liquidation plan. All of the invoices contain the notation: 
2 As another element of uncertainty. the liquidation plan provided for the transfer ofD's assets to a holding company, 
I l without fmther explanation as to how or when the assets would be transferred 
to the Petitioner. 
4 
"Refer to inter-company contract for payment terms." No such inter-company contract is in the record 
to clarify the context of the invoices. While the record includes copies of earnings statements issued 
to the Beneficiary which show that he was on the Petitioner's payroll by January 2019, that fact simply 
shows that the Beneficiary had a change of employer, notlthat the Petitioner was~s successor-in­
interest. According to publicly available sources continues to exist as a subsidiary of the 
Petitioner. 
Thus, the Petitioner has not folly described and documented the alleged transfer of ownership o0' s 
business to the Petitioner. We conclude, therefore, that the Petitioner has not satisfied all three factors 
discussed in Matter of Dial Auto and the N~d Memorandum to establish that it is the success□· -
interest to the labor certification employerl__J. Accordingly, the labor certification obtained b 
cannot be used to support the instant petition. 
III. CONCLUSION 
Since the petition is not supported by a valid labor certification, it cannot be approved. Accordingly, 
we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
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