remanded EB-3 Case: Graphic Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 06092689 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 16, 2020 
The Petitioner, a newspaper publisher, seeks to employ the Beneficiary as a graphic designer. It 
requests skilled worker classification for the Beneficiary under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S .C. § 1153(b)(3)(A)(i). This 
employment-based "EB -3" 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 of the Nebraska Service Center initially approved the petition, but subsequently revoked 
the approval. The Director found that the Petitioner did not establish its ability to pay the proffered 
wage from the priority date onward, did not establish that it is the successor-in-interest to the company 
that filed the labor certification, and did not establish that the petition is supported by a valid labor 
ce11ification. On appeal the Petitioner asserts that the Director misapplied the law to the evidence of 
record and that previously submitted documentation refutes the Director 's findings in the revocation 
decision. 
Upon de nova review, we will withdraw the Director 's decision. We will remand the case for further 
consideration and the issuance of a new decision. 
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 domestic workers simi larly 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. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that the Secretary of Homeland Security may "for 
good and sufficient cause, revoke the approval of any petition." By regulation this revocation authority 
is delegated to any USCIS officer who is authorized to approve an immigrant visa petition "when the 
necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). USCIS must 
give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity 
to submit evidence in opposition thereto, before proceeding with written notice of revocation. See 
8 C.F.R. § 205.2(b) and (c). A notice of intent to revoke (NOIR) "is not properly issued unless there 
is 'good and sufficient cause' and the notice includes a specific statement not only of the facts 
underlying the proposed action, but also of the supporting evidence." Matter of Estime, 19 I&N Dec. 
450, 451 (BIA 1987). Per Matter of Estime, "[i]n determining what is 'good and sufficient cause' for 
the issuance of a notice of intention to revoke, we ask whether the evidence of record at the time the 
notice was issued, if unexplained and unrebutted, would have warranted a denial based on the 
petitioner's failure to meet his or her burden of proof" Id. 
II. ANALYSIS 
A. Procedural History 
The labor certification underlY,...,.in...,__.......,,'--"--'.......,"""""""""'"--""--~ .................. .....,_,,"""---'.......,. ....................... .....,.,,,........,""'""'-....,,,r Alien Worker 
(1-140 petition), was filed by FEIN Federal 
9
1 Identification Number) a subsidiary of 
, on January 24, 2018. Prior to the labor certification's approval the Petitioner purchased 
in an "Agreement for Purchase and Sale of Assets" dated June 27, 2018. The labor 
certification was approved by the DOL in September 2018 and submitted to USCIS along with the 
I-140 petition that was filed by the Petitioner, FEIN! I, in November 2018. The I-140 petition 
was approved by USCIS that same month. 
In January 2019, however, the Director issued a NOIR that discussed a number of shortcomings in the 
evidence of record. The Director indicated that the drrn:eutation submitted with the 1-140 petition 
did not establish the ability of either the Petitioner, orl orl I to pay the proffered 
wage of $38,854 per year from the priority date of January 24[ 2018, 1 onward. The Director also 
stated that because the evidence did not show that I had the ability to pay the proffered 
wage from the priority date until the date of its ownership transfer to the Petitioner, the Petitioner had 
not established its eligibility for the immigration benefit requested as a successor-in-interest for the 
labor certification filed by I I As a result, the Director indicated that the petition was not 
supported by a valid labor certification. 
In response to the NOIR the Petitioner submitted additional documentation including copies of its 
federal income tax return (Form 1120) for 2018; the Forms 941, Employer's QUARTERLY Federal 
1 The priority date of an 1-140 petition is the date underlying the labor certification was filed with the DOL. See 8 C.F.R. 
§ 204.S(d). 
2 
Tax Returns, filed by I I and I I for the first two quarters of 2018; and the 
Beneficiary's Forms W-2, Wage and Tax Statements, from I I and the Petitioner for 2018. 2 
In the revocation decision the Director found that consolidated federal income tax returns fromB 
B
could not be utilized to establish the Petitioner's ability to pay the proffered wage because 
is a separate and distinct legal entity from the Petitioner and had no legal obligation to pay the 
Beneficiary's proffered wage, citing Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 
1980), and Sitar Restaurant v. Ashcroft, 2003 WL 22203713, *3 (D. Mass. Sept. 18, 2003). The 
Director also found that the record did not establish the ability of I I to pay the proffered 
wage between the priority date in January 2018 and the transfer of its ownership to the Petitioner in 
June 2018. The Director concluded that the Petitioner did not establish that it is a successor-in-interest 
to I I, and as a consequence that the labor certification approved for I I does not 
support the instant petition. 3 
On appeal the Petitioner asserts that the consolidated federal income tax return( s) o±i I the 
oareot comrration of I . I should be taken into consideration in determining the ability of 
Ito pay the proffered wage prior to the transfer of its ownership to the Petitioner, and that 
:~~e for this issuj the record establishes the successor-in-interest relationship between the Petitioner 
B. Ability to Pay the Proffered Wage 
To be eligible for the classification requested for the beneficiary, a petitioner must establish that it has 
the ability to pay the proffered wage stated in the labor certification. As provided in the regulation at 
8 C.F.R. § 204.5(g)(2): 
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 
2 The record indicates that the Beneficiary began working for I I in 2015 and continued working for the 
organization after its purchase by the Petitioner in 2018. 
3 Since the Petitioner is a different entity than the labor certification employer, it must establish that it is a successor-in­
interest to that entity. See Matter of Dial Auto Repair Shop, Inc., 19 l&N Dec. 481 (Comm'r 1986). The Petitioner may 
establish a valid successor relationship for immigration purposes if it satisfies three condition. First, it must fully describe 
and document the transaction transferring ownership of the predecessor. Second, it must demonstrate that the job 
opportunity is the same as originally offered on the labor certification. A labor certification is only valid for the particular 
job opportunity stated on the application form. 20 C.F.R. § 656.30( c ). Third, the Petitioner must prove by a preponderance 
of the evidence that it is eligible for the immigrant visa in all respects, including establishing the predecessor's ability to 
pay the proffered wage from the priority date until the date of ownership transfer to the Petitioner. 
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statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
Thus, the Petitioner must establish its continuing ability to pay the proffered wage from the priority 
date onward. Since the 1-140 petition was filed after the company that filed the labor certification, 
I I was acquired by the Petitioner, the Petitioner must establish that I . I had the 
ability to pay the proffered wage from the priority date until the date its ownership was transferred to 
the Petitioner, as well as its own ability to pay the proffered wage from the date of ownership transfer 
forward. See 8 C.F.R. § 204.5(g)(2); see also Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 
481,482 (Comm'r 1986). 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
As previously indicated, the proffered wage in this case is $38,854 per year and the priority date is 
January 24, 2018. The Beneficiary's Forms W-2 for 2018 show that he received gross pay of 
$15,835.61 froml land $20,166.18 from the Petitioner, which adds up to $36,000.99 for the 
year as a whole. Since this sum was $2,853.01 less than the proffered wage, the Petitioner has not 
established its ability to pay the proffered wage from the priority date onward based on the wages it 
andl lpaid to the Beneficiary in 2018. 
If a petitioner does not establish that it has employed and paid the beneficiary an amount equal to or 
above the proffered wage from the priority date onward, USCIS will examine the net income and net 
current assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or 
audited financial statements( s ). If either of these figures, net income or net current assets, equals or 
exceeds the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would ordinarily be considered able to pay the proffered 
wage during that year. 
The Petitioner's federal income tax return for 2018 recorded net income of $24,246 and net current 
assets of $140,210. 4 Since each of these figures exceeded the difference between the proffered wage 
and the wages paid to the Beneficiary in 2018, the Petitioner has established its ability to pay the 
proffered wage from June 27, 2018, the date it assumed ownership ofl I through the end of 
the year. 
There is, however, is no 2018 federal income tax return forl I the entity that filed the labor 
certification, because it was a subsidiary within a controlled group whose parent corporation,! I 
4 For a C Corporation, like the Petitioner, net income (or loss) is recorded on page 1, line 28, of the Form 1120, and net 
current assets ( or liabilities) are recorded in Schedule L as the difference between current assets listed on lines 1-6 and 
current liabilities listed on lines 16-18. 
4 
D files a consolidated tax return for all its subsidiaries. The record includes a copy ofl g's 
federal income tax return for the pre-priority date year of 2017 which contained no information 
concerning the net income ( or loss) and net current assets ( or liabilities) of the individual subsidiaries. 
We may presume thatl I filed the same sort of consolidated tax return for 2018. Thus, the 
Petitioner cannot establish the ability ofl , Ito pay the proffered wage from the priority date 
in January 2018 through the date of its sale to the Petitioner in June 2018 based on net income or net 
current assets figures in a federal income tax return. 
In view of the unavailability of a federal tax return for I I the other two types of required 
regulatory evidence in 8 C.F.R. § 204.5(g)(2) - an annual report or an audited financial statement -
acquire added importance. We will remand this matter to the Director to afford the Petitioner the 
opportunity to submit an annual report or an audited financial statement as evidence of the ability of 
I I to pay the proffered wage from the priority date until the date of its ownership transfer to 
the Petitioner. 
The Petitioner may also submit additional materials in support of the factors discussed in Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967), which allows USCIS to consider the 
totality of the circumstances affecting a petitioner's ability to pay the proffered wage. 
Regarding the successor-in-interest issue, the Director acknowledged in the NOIR that the first two 
conditions of a successor-in-interest relationship between I land the Petitioner were met, 
and the revocation decision makes clear that the only missing element of the third condition is proof 
of the Petitioner's ability to pay the proffered wage. Therefore, if the Petitioner on remand can 
establish the ability ofl I to pay the proffered wage from the priority date until the date of 
its ownership transfer to the Petitioner, it will have met all of the conditions to establish its successor­
in-interest relationship tol I In such case the labor certification filed byl I would 
fully support the I-140 petition. 
III. CONCLUSION 
We will remand this case for further consideration of the ability oti I the entity that filed 
the labor certification, to pay the proffered wage from the priority date until the date its ownership was 
transferred to the Petitioner. In accord with the foregoing discussion the Director may request 
additional evidence from the Petitioner. The Director shall then issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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