remanded EB-3 Case: Commercial Cleaning

U.S. Citizenship 
and Immigration 
Services 
In Re : 22935699 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 21, 2022 
The Petitioner, a business engaged in commercial cleaning, seeks to employ the Beneficiary as a 
commercial cleaner. It requests classification of the Beneficiary as an "other" worker under the third 
preference immigrant category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(iii), 
8 U.S.C. § 1153(B)(3)(A)(iii). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor for lawful permanent residence a noncitizen who is capable of performing 
unskilled labor that requires less than two years of training or experience and is not of a temporary or 
seasonal nature. 
The Director of the Nebraska Service Center approved the petition, but later revoked that approval 
following the issuance of two notices of intent to revoke (NOIR). The Director concluded that the 
Petitioner's responses to the NOIRs reflected that it was no longer in operation and that the 
Beneficiary's job offer was no longer valid. The matter is now before us on appeal. 
In this proceeding, the Petitioner bears the burden of proof to establish eligibility for the requested 
benefit by a preponderance of the evidence. Section 291 of the Act, 8 U.S .C. § 1361; Matter of 
Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de nova. 
Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de nova review, we will 
withdraw the Director's decision and remand the matter to the Director for the issuance of a new 
decision. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration 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 the offered position; and (2) employment of a noncitizen 
in the position would 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). 
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 
DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, if USCIS approves a petition, a beneficiary 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. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by the record, the erroneous nature of a petition's approval justifies its revocation. Matter 
of Ho, 19 I&N Dec. 582,590 (BIA 1988) (citation omitted). 
USCIS may issue a NOIR if the unexplained and unrebutted record at the time of the notice's issuance 
would have warranted the filing's denial. Matter of Estime, 19 I&N Dec. 450,451 (BIA 1987). If a 
NOIR response does not rebut or resolve revocation grounds stated in the notice, USCIS properly 
revokes a petition's approval. Id. at 451-52. 
II. ANALYSIS 
Following the approval of the petition in February 2018, the Director issued a NOIR in January 2020, 
indicating that following an investigation, USCIS had discovered that the Petitioner was no longer in 
operation. The Director requested that the Petitioner submit evidence to establish that it continued to 
do business. In res onse, the Petitioner asserted that it had been taken over by another commercial 
cleaning business, in 2018, and that the Beneficiary's job offer 
still existed throug, ___ a successor-in-interest. The Petitioner further submitted a Form 1-485 
Supplement J, Confirmation of Bona Fide Job Offer of Request for Job Portability Under INA Section 
204(j), executed by the Beneficiary on February 20, 2020. 
The Director later issued another NOIR in March 2020 acknowledging the evidence provided by the 
Petitioner related to thel I "business transfer." However, the Director requested evidence to 
substantiate that the Beneficiary had been employed with I since January 2019. Specifically, 
they requested the Petitioner submit the Beneficiary's 2019 IRS Forms W-2, Wage and Tax 
Statements, and I last three months of paystubs to verify its operations. In response, the 
Petitioner submitted documentation meant to substantiate that I I was doing business, 
including an unaudited profit and loss statement and an IRS Form 941, Employer's Quarterly Federal 
Tax Return, from the first quarter of 2020. The Petitioner indicated that the Beneficiary was not yet 
working forl I because his Form 1-485 application had not yet been approved. 
As discussed, the Director revoked the approval of the petition, determining the Petitioner's responses 
to the NOIRs reflected it was no longer in operation; and therefore, that the Beneficiary's job offer 
was no longer valid. On appeal, the Petitioner contends that it timely responded to the Director's 
initial NOIR and submitted evidence that it had been acquired byl I The Petitioner further 
points to the Form 1-485 Supplement J it submitted and suggests that the Director did not sufficiently 
consider the Beneficiary's job portability. The Petitioner asserts that the Beneficiary's paystubs 
requested in the second NOIR were not relevant, since she was not required to have worked for 
for the job offer to be bona fide. 
2 
As discussed, the Petitioner asserted in response to the initial NOIR that it had been "taken over" by 
I I suggesting that the Beneficiary's job offer remained valid through I I as a 
successor-in-interest. In the second NOIR, the Director merely acknowledged this assertion, but did 
not properly assess whether the Petitioner had submitted sufficient evidence to establish that I 
was a successor-in-interest. Further, in the revocation decision, the Director stated that the "evidence 
submitted in response to the NOIR establishes thatl I took over the [Petitioner] in 2018." 
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 USCJS 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. 1 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 sufficiently address whether !qualified as a successor-in-interest. The 
Petitioner submitted insufficient supporting documentation to substantiate that it was acquired bye=] 
I las claimed. The Petitioner did not provide documentation to establish: 1) a qualifying transfer from 
the predecessor (the Petitioner) to the successor! ; and 2) the transfer of ownership of the 
predecessor; the organizational structure of the predecessor prior to the transfer; the current 
organizational structure of the successor; and the job title, job location, rate of pay, job description, 
and job requirements for the pem1anent job opportunity for the Beneficiary . See 6 USCIS Policy 
Manual E.3, https://www.uscis.gov/policymanual. 
We note that the evidence submitted by the Petitioner leaves substantial uncertainty as to whether this 
transaction ever took place. For instance, the Petitioner submitted its 2016 IRS Form 1120S, U.S. Income 
Tax Return for an S Corporation reflecting that it earned $3,855,690 and paid $2,365,789 in salaries and 
wages during that year. However, in response to the Director's second NOIR, the Petitioner provided a 
profit and loss statement indicating that earned only $334,760.66 during 2019. Likewise, the 
Petitioner provided an IRS Form 941 from the first quarter of 2020 indicating thatl I had paid 
only $9,305.85 in wages during that quarter. Given the discrepancies in revenue and wages, on remand, 
the Director should examine whether the documentation submitted to the record establishes that the 
Petitioner was acquired by I las asserted. The Petitioner must resolve discrepancies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
1 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 carry on the business in the same manner as the 
predecessor. The successor must continue to operate the same type ofbusiness 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). 
3 
In addition, the Director also did not sufficiently address whether I I had the ability to pay the 
proffered wage from the date of the claimed transfer onward. 2 For instance, the Petitioner only submitted 
an unaudited profit and loss statement relevant tol I and did not provide the required federal tax 
returns or audited financial statements necessary to establish its ability to pay the proffered wage from 
the date of its claimed acquisition of the Petitioner through to the time of the adjudication. 
The Director also did not sufficiently consider whether the Beneficiary qualified for job portability 
consistent with section 204(j) of the Act. In order to qualify for portability under section 204(j) of the 
Act, the adjustment applicant must meet the following eligibility requirements: 1) the applicant is the 
beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved; 2) 
the petition is filed in the employment-based first, second, or third preference category; 3) the 
applicant's properly filed adjustment application has been pending with users for 180 days or more 
at the time users receives the request to port; 4) the new job offer through which the applicant seeks 
to adjust status is in the same or similar occupational classification as the job specified in the petition; 
and 5) the applicant submitted a request to port. See 7 USCIS Policy Manual E.5, 
https://www.uscis.gov/policymanual. 3 
The Beneficiary's Form I-140, Immigrant Petition for Alien Worker, was approved on February 28, 2018, 
and she filed a Form I-485, Application to Register Permanent Residence or Adjust Status, on February 
26, 2018, which has yet to be adjudicated. In addition, in response to the Director's first NOIR, the 
Beneficiary submitted a Form I-485 Supplement J indicating her intention to port tol I on 
February 20, 2020. Since the Beneficiary's Form I-140 had been approved and her Form I-485 had been 
pending for more than 180 days when she submitted a request for port, the Director should have 
considered whether she was eligible to port consistent with section 204(j) of the Act. 4 
For the foregoing reasons, we will withdraw the Director's decision and the matter will be remanded for 
entry to a new decision. On remand, the Director should request any additional evidence deemed 
warranted to address the noted deficiencies above. It is the Petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.e. § 1361; Matter of Skirball 
Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
2 The regulation at 8 C.F.R. § 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 profit/loss statements, bank account records, or personnel 
records, may be submitted by the petitioner or requested by the Service. 
3 The new job offer may be with the same petitioner or with an entirely new employer, including self-employment. 
Applicants can submit the portability request and evidence with the adjustment application or in any in-person interviews 
or in response to a request or other notice from USCTS. 7 USCIS Policy Manual E.5, https://www.uscis.gov/policymanual. 
4 We note that the portability provision at section 204(j) of the Act does not shield petitions from revocation. Herrera v. 
USCIS, 571 F.3d 881, 883 (9th Cir. 2009). "[I]n order for a petition to 'remain' valid [for portability purposes], it must 
have been valid from the start." Id. at 887. 
4 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
5