dismissed EB-3 Case: Software

U.S. Citizenship 
and Immigration 
Services 
In Re : 19731910 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 20, 2022 
The Petitioner, an educational publisher, seeks to employ the Beneficiary as a quality manager­
software . It requests his classification under the third preference, immigrant category as a 
professional. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii) , 8 U.S.C . § 
1153(b)(3)(A)(ii). This employment-based 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, concluding the Petitioner did not 
establish that it was the successor-in-interest to the entity that filed the labor certification . 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010) (discussing the standard of proof) . Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process . First, a prospective employer 
must apply to the U.S . Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position will not harm wages and working conditions of U.S . workers with similar 
jobs. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). 1 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S . Citizenship and Immigration Services (USCIS) . See section 204 of the Act, 8 U.S .C. § 1154 . 
Among other things , USCIS determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, ifUSCIS approves a petition , a designated noncitizen 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. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing. See 8 C.F .R. § 204 .5( d). 
II. ANALYSIS 
A. Procedural History 
The underlying labor certification was filed on March 29, 2019, by (the "labor 
certification employer"). Thereafter, a different legal entity,! I (the 
"Petitioner"), filed an immigrant petition with the labor certification. 2 In support of the petition, the 
Petitioner submitted a "Corporate Affidavit" forl _ 3 dated March 26, 2019. 
The affidavit includes a list of "valid H-1B employees," including the Beneficiary, and states that they 
have been transferred from the labor certification employer to_ I The 
affidavit further states: 
assumes all obligations, liabilities and undertakings ansmg 
from or under attestations made in each individual certified and still effective LCA 
filed by I Assumption of obligations and liabilities include, but not 
limited to, duties, wages, location of employment, and working conditions of the 
employee. 
In a later request for evidence (RFE), the Director noted the discrepancy between the labor certification 
employer and the Petitioner and requested that the Petitioner explain it, and if applicable, submit 
evidence to demonstrate if a successor-in-interest transaction had occurred, including legal 
documentation of the exact date of the transaction and whether the current entity operates the same 
type of business. In response, the Petitioner submitted the same corporate affidavit explained above 
and several press releases dated in February 2019 explaining how I I had sold its I I 
coursework business" to The Director later denied the petition, 
concluding the Petitioner did not submit sufficient evidence to establish that it was a successor-in­
interest to the labor certification employer, noting that the submitted affidavit froml I I ldid not equate to a transfer of ownership. 
On appeal, the Petitioner submits additional evidence and contends that this demonstrates that it was 
a successor-in-interest to the labor certification employer. Specifically, the Petitioner rovides certain 
portions of a purchase agreement dated in February 2019 executed between 
(listed as "Parent'),! (listed as "Seller"), and 4 
(listed as "Purchaser"). The Petitioner points to a section of this agreement, which states: 
WHEREAS, a Delaware limited liability company (the 
"Company"), a wholly owned direct subsidiary of the Seller, which is in tum wholly 
2 The Petitioner and the labor certification employer have different federal employer identification numbers. 
3 is not the Petitioner. Instead, it appears to be a separate limited liability organized in 
Delaware in I 2018. See Del. Dep't of State, Div. of Corps., 
https://icis.corp.delaware.oov/Ecorp/EntitySearch/NameSearch.aspx (last visited July 19, 2022). The Petitioner was 
organized in Delaware in 2018. Id. 
4 The Petitioner states that acted throu hits subsidiary, 
However, the purchaser listed on the purchase agreement is _______ notl 
It is not clear if these companies are affiliated. The Petitioner must resolve ambiguities in the record with independent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-592 (BIA 1988). 
2 
owned by Parent and its indirect Subsidiary, directly and through its 
Affiliates, is engaged in the Business ... 
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires to 
purchase from the Seller, all of the Company Interests, upon the terms and subject to 
the conditions set forth in this Agreement. 
The Petitioner contends that the Petitioner was a party to this purchase agreement and that it establishes 
that it was a successor-in-interest to the labor certification employer. The Petitioner further submits 
on appeal another section of the purchase agreement, which states in relevant part: 
6.13 Employment Matters. 
(a) On or prior to the Closing Date, Parent shall use reasonable best efforts to (i) 
transfer the employment of all the Closing Date Employees ... to the Company 
... and (iii) cause the Company to employ the Closing Date Business Employees 
under the terms and conditions of employment that are the same in all material 
respects as those in effect immediately before such transfer of employees, in each 
case in compliance with applicable Law. 
B. Successor-In-Interest 
Where the petitioner is a different entity than the labor certification employer, the petitioner must 
establish that it is a successor-in-interest to that employer. 5 A valid successor-in-interest relationship 
exists if three conditions are satisfied. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 
(Comm'r 1986); 6 USCIS Policy Manual E.3, https://www.uscis.gov/policymanual. First, the 
successor must fully describe and document the transfer and assumption of the ownership of all, or a 
relevant part of, the predecessor by the successor. 6 Second, the successor must demonstrate that the job 
opportunity is the same as originally offered on the labor certification. Third, the successor must establish 
all elements of eligibility as of the priority date, including evidence of the predecessor's ability to pay the 
proffered wage from the priority date to the date of the ownership transfer, and the successor's ability to 
pay the proffered wage from the date of the transfer onward. Id. The Director did not dispute, nor do we, 
that the job opportunity in the labor certification and petition were identical, that the Beneficiary is 
qualified for the stated position, or that the ability to pay the proffered wage has been established. 7 
Therefore, the only issue on appeal is whether the Petitioner sufficiently described and documented the 
transfer and assumption of the ownership from the labor certification employer. 
5 A labor certification is only valid for the particular job oppmtunity stated on the application fonn. 20 C.F.R. § 656.30(c). 
6 The record must show that the successor not only acquired the predecessor's assets, but also that the successor acquired 
the essential rights and obligations of the predecessor necessary to cany on the business in the same manner as the 
predecessor. The successor must continue to operate the same type of business as the predecessor, and the way the business 
is controlled and carried on by the successor must remain substantially the same as it was before the ownership transfer. 
6 USCIS Policy Manual, supra, at E.3(F)(3). 
7 Following the date this appeal was filed in February 2020, the Petitioner (now named 
filed another Form 1-140, Immigrant Petition for Alien Workers, on behalf of the Beneficiary and that petition was 
approved on February 24, 2021. Notably, the Petitioner was listed on both the labor certification and the petition. 
3 
Upon review, the Petitioner has not fully described and documented the purported transfer of the 
ownership of the labor certification employer to the Petitioner. For successor-in-interest purposes, the 
transfer of ownership may occur at any time after the filing or approval of the original permanent labor 
certification with DOL. 6 USCIS Policy Manual, supra, at E.3(F)(3). In this matter, the purchase 
agreement submitted on appeal is dated February 2019, which is before the date the labor certification 
was filed on March 29, 2019. The Petitioner indicates that "all interests" in it were acquired by 
_________ in March 2019, but it does not specify the exact date of the closing of 
this transaction. Similarly, the asserted transfer of employees from the labor certification employer to 
the Petitioner, claimed to be effectuated by the corporate affidavit on March 26, 2019, also took place 
prior to the date the labor certification was filed. Therefore, the record does not establish that a transfer 
of ownership occurred after the filing of the labor certification with DOL. 
In addition, the Petitioner provided only three reement appearing to reflect that 
the Petitioner (through affiliated com anies andl 
was sold in the transaction, and that was the purchaser. One page of the 
purchase agreement vaguely refers to the labor certification employer as an "indirect subsidiary" of 
________ but the record does not fully document the labor certification employer's 
relationship to the Petitioner. Regardless, the submitted documentation does not reflect that the 
Petitioner assumed the essential rights and obligations of the labor certification employer as required 
to establish it as a successor-in-interest. Further, the full nature of the transaction is unclear since the 
Petitioner did not submit the complete purchase agreement and other documentation to substantiate 
the terms of the deal. For instance, the purchase agreement states that the purchaser was acquiring 
"all of the Company Interests," a definition not included in the three submitted pages of the purchase 
agreement. 8 Therefore, the Petitioner did not sufficiently describe and document the purported transfer 
and assumption of the ownership of the labor certification employer. Id. 
We acknowledge that the submitted section 6.13 of the purchase agreement related to "Employment 
Matters" appears to indicate that the labor certification employer's parent company would use reasonable 
efforts to transfer the "Closing Date Business Employees" from it to the Petitioner prior to closing and 
employ these individuals in the same manner. However, the definition of "Closing Date Business 
Employees" is not provided in the record, and this section does not establish that, after the priority date, 
the Petitioner acquired the essential rights and obligations of the labor certification employer necessary 
to carry on the business. 
Further, we agree with the Director's determination that the provided corporate affidavit does not 
demonstrate that the Petitioner is a successor-in-interest to the labor certification employer. Again, as we 
have noted, the claimed transfer took place prior to the priority date, and the affidavit indicates that an 
employer other than the Petitioner assumed all obligations, liabilities and undertakings arising from 
each "LCA" filed by the labor certification employer. In addition, as noted by the Director, the 
submitted corporate affidavit does not reflect a change in ownership whereby the Petitioner acquired the 
essential rights and obligations necessary to carry on the business of the labor certification employer. 
The mere assumption of immigration obligations, or the transfer of immigration benefits derived from 
approved or pending immigration petitions or applications, will not give rise to a successor-in-interest 
8 The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
l&N Dec. at 376. 
4 
relationship unless the transfer results from the bona fide acquisition of the essential rights and 
obligations of the predecessor necessary to carry on the business. See 19 Am. Jur. 2d Corporations § 
2170; see also 20 C.F.R. § 656.12(a). 
For the foregoing reasons, the Petitioner did not establish by a preponderance of the evidence that it is a 
successor-in-interest to the labor certification employer. As such, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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