remanded EB-3 Case: Web Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 16965330 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 16, 2021 
The Petitioner sought to employ the Beneficiary as a web developer. It requested classification of the 
Beneficiary under the third-preference, immigrant category as a skilled worker. Immigration and 
Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. § l 153(b )(3)(A)(i). This employment­
based category allows a U.S. business to sponsor a foreign national for lawful permanent resident 
status based on a job offer requiring at least two years of training or experience. 
After initially approving the immigrant visa petition, the Director revoked its approval. The Director 
then determined that the revocation was improper, reopened the matter on a Service motion, and 
denied the petition . The Director's decision concluded that the Petitioner did not establish that there 
was a bona fide job offer to the Beneficiary when the petition was initially filed. 
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 I&N 
Dec. 369, 375 (AAO 2010). The 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 
Director's decision and remand the matter for entry of a new decision consistent with the following 
analysis. 
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. REVOKING THE APPROVAL OF AN IMMIGRANT VISA PETITION 
USCIS may revoke its approval of an immigrant visa petition "at any time" for "good and sufficient 
cause." Section 205 of the Act, 8 U.S.C. § 1155. Revocations that do not meet the definition of an 
automatic revocation under 8 C.F.R. § 205.1 may be made only after issuing a notice of intent to 
revoke (NOIR) the approval of the petition. The NOIR provides the opportunity to submit evidence 
in support of the petition and in opposition to the alleged grounds for revocation. 8 C.F.R. § 205.2(b ). 
A NOIR is issued for "good and sufficient cause" if the record of proceeding at the time of issuance 
would warrant the denial of the petition. Matter of Estime, 19 I&N Dec. 450, 451 (BIA 1987). 
Similarly, the approval of the petition is properly revoked if the record (including any response to the 
NOIR) warrants the denial of the petition. Id. at 452; see also Matter of Ho, 19 I&N Dec. 582, 590 
(BIA 1988) (the realization that a petition was approved in error may be good and sufficient cause for 
revoking its approval). If the approval of the petition is revoked, the director must provide the 
petitioner with a written decision that explains the specific reasons for the revocation. 8 C.F.R. 
§ 205.2(c). Petitioners may appeal revocations on notice to the AAO. See 8 C.F.R. § 205.2(c). 
III. ANALYSIS 
Following the initial approval of the petition, in an interview with the Beneficiary for his Form T-485, 
Application to Register Permanent Residence or Adjust Status, it came to USCIS' attention that the 
Beneficiary was no longer employed with the Petitioner, and that the Petitioner transferred its business 
to another entity several months prior to the filing of the petition. The Director determined that the 
Petitioner's job offer to the Beneficiary was therefore not valid and revoked the approval of the 
petition. However, the Petitioner was not provided notice and opportunity to respond and overcome 
the grounds for revocation. Realizing the error, the Director reopened the matter on Service motion 
and issued a notice of intent to deny (NOID) to the Petitioner and the Beneficiary. In the NOID, the 
Director stated that the Petitioner was no longer in business and informed both parties of the need to 
establish that the job offer was valid at the time the petition was filed. Counsel for the Petitioner 
responded to the NOID with evidence that the Petitioner remained in business, however the Director 
issued a decision denying the petition. 
We find that the Director erred in issuing the NOID and denying the petition. In order to issue an 
unfavorable decision in this case, the Director was required to issue a notice of intent to revoke the 
petition's approval pursuant to Section 205 of the Act. The Service motion reopened the revocation 
proceeding, not the adjudication of the initial petition. Once an immigrant visa petition has been 
approved, it must be revoked, not denied. See 8 C.F.R. § 204.5(n)(3). Because the Director improperly 
issued a NOTD rather than a NOTR, we will withdraw the Director's decision to follow the 
requirements of 8 C.F.R. § 205.2(b) and Matter of Estime. 
TV. SUCCESSOR-TN-INTEREST 
In the remanded proceeding, the Director will need to determine whether the Petitioner is a successor­
in-interest to the entity that filed the labor certification. A U.S. employer may file an immigrant visa 
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petition if it is "desiring and intending to employ [ a foreign national] within the United States." 
Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a beneficiary under the terms and 
conditions specified in an accompanying labor certification. Matter of Izdeska, 12 l&N Dec. 54, 55 
(Reg'l Comm'r 1966) (affirming a petition's denial where, contrary to the terms of the accompanying 
labor certification, the petitioner did not intend to employ the beneficiary as a domestic worker on a 
full-time, live-in basis). 
In the NOID, the Director advised that, "In an interview with USCIS on April 8, 2019, the Beneficiary 
stated that the [Petitioner] was absorbed by [his current employer] in September 2017, prior to filing 
the petition. As the Petitioner was no longer in business, a bona fide job offer did not exist with the 
petitioning entity as of the time of filing." 
In response to the NOID and on appeal, the Beneficiary provides evidence to establish that the 
Petitioner was a valid and operating business at the time of filing and remains in good standing to date. 
As the record demonstrates that the Petitioner was continuing to do business from the time of filing the 
petition, the relevant inquiry is whether a valid successor-in-interest relationship exists and when that 
relationship was created. 
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. 
Following his 1-485 interview, the Beneficiary provided a letter from his current employer to explain 
its relationship with the Petitioner as follows: 
• The Petitioner's business involved two services-web-based internet marketing and 
branding, and website development and support. 
• The Petitioner decided to focus on marketing and branding and eliminate the 
website development division, which included the Beneficiary. 
• Through an informal agreement, the Petitioner transferred the assets of the website 
development division , including seven employees, to it, the Beneficiary's current 
employer. 
A second letter states that the Beneficiary began employment with the new employer on March 11, 
2019. 
The record does not include documents of the transfer and assumption of the ownership of the Petitioner 
by the new entity. Nor is the record clear when the transfer occurred and whether it occurred before the 
petition was filed or while the petition was pending. The Director's NOID did not request this evidence 
and the decision does not address whether a valid successor-in-interest relationship may exist. 
The Director did not consider all of the evidence in the record or apply the three-prong test of Matter 
of Dial Auto. On remand, the Director may wish to issue a NOIR outlining these issues, and allow the 
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Petitioner an opportunity to respond. The Director must state how the record fails to demonstrate 
eligibility for the classification sought under the pertinent regulatory scheme. 
The Director may wish to request additional evidence, if deemed appropriate, and analyze the record 
to determine whether the business transaction between the Petitioner and the Beneficiary's current 
employer creates a valid successor-in-interest relationship. 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. 1 
See Matter of Dial Auto, 19 I&N Dec. at 482. The Director should also consider the 2009 USCIS 
memorandum that provided a definition for "successor-in-interest" and guidance on amendment filing 
procedures. Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, 
USCIS, HQ 70/6.2, Successor-in-interest Determinations in Adjudication of Form 1-140 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). 
V. CONCLUSION 
The Director erred in attempting to deny the previously approved immigrant visa petition. Instead, in 
the Director must comply with the requirements for revoking the prior approval of a petition. The 
matter is remanded for the issuance of a NOIR that complies with the requirements of 8 C.F.R. § 205.2 
and Matter of Es time. The NOIR should also address the discussion in this decision about successors­
in-interest. 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. 
1 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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