remanded EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 13721956 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 16, 2021 
The Petitioner, an educational services provider, seeks to employ the Beneficiary as a software 
engineer. It requests classification of the Beneficiary under the third-preference, immigrant 
classification for professional workers. 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" category 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 that the Petitioner did not 
establish that it was the successor-in-interest to the entity that filed the labor certification . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe, 25 l&N 
Dec . 369, 375 (AAO 2010) . The Administrative Appeals Office (AAO) reviews the questions in this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 
review , we will withdraw the decision of the Director. The matter is remanded for the entry of a new 
decision consistent with the analysis below. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process . To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL) . See section 212(a)(5) of the Act, 8 U.S.C . § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application 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 considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national may finally 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. Procedural History 
The underlying labor certification was filed on June 30, 2009, bvl I FEIN (Federal 
Employer Identification Numberj I. 1 I I timely filed an immigrant petition 
with the labor certification seeking to employ the Beneficiary as an IT engineer under the second­
preference, immigrant classification for members of the professions with advanced degrees or their 
equivalents. Section 203(b)(2)(A) of the Act, 8 U.S.C. § l 153(b)(2)(A). That immigrant petition was 
approved on July 23, 2010. 
Following the approval of the immigranr-t -"'--'-'---'---'---...._ ______ ___. underwent a name chan e and 
a subse uent reor anization. In 2013, hanged its n,....a_m_e_t~------------1 
----~-___. and retained its FEIN. In 2017,~---~u_rc_h_a_s_ed_b _____ --,_~_--,---J 
,....c=~-.-----'subsidiary,L..- ____ ~ ____ ~ ___ ___..___._........,......_.......,,....., 
operations were transferred to the Petitioner,.__ ________ _. 
On May 28, 2019, the Petitioner filed the instant petition with the underlying labor certification filed 
b~ I The petition requests a change in classification of the Beneficiary to the third­
preference, immigrant classification for professional workers. The cover letter accompanying the 
petition states that it is a "1uccessor-in-Interest/Amendment" petition. On the petition, the Petitioner 
lists its company name as l anl I company," 
with FEINI L 
After issuing a request for evidence (RFE) seeking additional documentation of the successor-in­
interest relationship between I I and the Petitioner, the Director denied the petition. 
The Director stated that inconsistencies in the record suggested that the 201 7 transaction was a merger 
otC::Jand the Petitioner intol lwithl I as the parent company. However the Director 
found that the Petitioner did not establish a connection to the ori,=:ain=a=l~e=n=t=it"-'-'-___ ....,..._.....,. _ __,, 
because it did not submit evidence of the 2013 name change from '---r------.------' ·-~ The 
Director also stated that the evidence indicates tha~ I purchased and reassigned employees 
to the Petitioner, but that the Petitioner did not demonstrate that it "purchased the business units, 
essential rights, duties, assets, and obligations from the predecessor,'1 I Therefore, 
the Director concluded that the Petitioner did not establish that it was a successor-in-interest td I 
I I 
On appeal, the Petitioner asserts that the Director did not consider all of the documents in the record, 
including evidence of the 2013 name change submitted with the initial filing. The Petitioner farther 
asserts that the Director did not apply the correct standard to determine successorship, which does not 
require a purchase of the predecessor by the successor. 
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). 
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B. Successor-In-Interest 
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). First, the successor must fully describe and 
document the transfer and assumption of the ownership of the predecessor by the successor. Second, the 
successor must demonstrate that the job opportunity is the same as originally offered on the labor 
certification. Third, the successor must establish by a preponderance of the evidence that it is eligible for 
the immigrant visa in all respects. Id. 
The record includes multiple documents to describe the reorganization ofc=] including evidence of the 
2013 name change; Security and Exchange Commission filings detailing the 2017 transaction between 
17 and I I; the Agreement and Plan of Merger detailing the transaction between! l I I 
~ and the Petitioner; evidence of the assignment ofOcontracts, employees, leases, and trademark 
rights to the Petitioner; and evidence to demonstrate that the Petitioner continues to operate in the same 
business and location asD 
In his decision the Director cites to Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) and 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980), stating that the Petitioner's counsel's 
claims that it is the successor to Odo not constitute evidence. Although the Director lists many of the 
above documents in his decision, he does not acknowledge the evidence of the name change that was 
already in the record, nor does he specifically identify which documents resulted in the noted 
inconsistencies. Further, the Director does not cite to Matter of Dial Auto or discuss the analysis of the 
three conditions outlined in that precedent decision in either the RFE or his decision. 
The Director appears to have strictly interpreted Matter of Dial Auto to limit a successor-in-interest 
finding to cases where a petitioner shows that it "purchased" the original employer's rights, duties, 
obligations, and assets. However, Matter of Dial Auto does not stand for the proposition that a valid 
successor relationship may only be established through a purchase of a predecessor entity's rights, 
duties, and obligations. 
The Petitioner cites to a 2009 USCIS memorandum that provided a definition for "successor-in­
interest" and recognizes that corporate transactions take varying forms. Memorandum from Donald 
Neufeld, Acting Associate Director, Domestic Operations, USCIS, HQ 70/6.2, Successor-in-interest 
Determinations in Adjudication of Form I-140 Petitions; Adjudicator's Field Manual (AFM) Update 
to Chapter 22.2(b)(5) (AD09-37) (Aug. 6, 2009), http://www.uscis.gov/legal-resources/policy­
memoranda (Neufeld Memorandum). The Neufeld Memorandum states, 'The transfer of the 
ownership of the predecessor to the successor may occur through a merger, acquisition or 
reorganization ... The structure of business transactions resulting in the transfer of ownership of the 
predecessor to the successor vary from case to case." 
We agree with the Petitioner that a "purchase" is not required to create a valid successorship. 
However, a mere transfer of assets, even one that takes up a predecessor's business activities, does not 
necessarily create a successor-in-interest. See Holland v. Williams Mountain Coal Co., 496 F.3d 670, 
672 (D.C. Cir. 2007). The transfer of assets from a predecessor will only result in a successor-in­
interest relationship if the parties agree to the transfer and assumption of the essential rights and 
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obligations of the predecessor necessary to carry on the business. 2 See generally 19 Am. Jur. 2d 
Corporations § 2170 (2010). As noted above, the Petitioner was not required to purchase all ofc=J s 
assets, liabilities, and responsibilities in order to establish a valid successor-in-interest relationship. 
Instead, the transfer must have included the bona fide acquisition of the essential rights and obligations 
of the predecessor necessary to carry on the business. 
Because the Director did not consider all of the evidence the Petitioner submitted to properly apply 
the three-prong test of Matter of Dial Auto and to specifically identify inconsistencies in the record, 
we will withdraw the Director's decision. We will remand the matter to the Director to request 
additional evidence, if deeme~riate, and analyze the record to determine whether the business 
transaction betweenC7 andl__J (including the merger with I I and assignment of assets to 
the Petitioner) creates a valid successor-in-interest relationship between........,~---~-~ and the 
Petitioner. The Director should consider whether the Petitioner has established each of the conditions of 
Matter of Dial Auto, including whether the job opportunity offered by the Petitioner is the same as the 
job opportunity originally offered on the labor certification, and whether the Petitioner has established 
eligibility for the immigrant visa in all respects. 3 See Matter of Dial Auto, 19 I&N Dec. at 482. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
2 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 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. l 2(a). 
3 The successor must prove the predecessor's ability to pay the proffered wage as of the priority date and until the date of 
transfer of ownership to the successor. In addition, the successor must establish its ability to pay the proffered wage from the 
date of transfer of ownership forward. See 8 C.F.R. § 204.5(g)(2). 
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