DATE: DEC 0 5 2013 OFFICE: TEXAS SERVICE CENTER lNRE: Petitioner:
Beneficiary:
().~. Pepart.ment of Homeland Security
U.S. Citizc;nship and Immigration Se~icc;s
Administrative Appeals Offlc:e (AAO)
20 Massachusetts Ave., N.W., !VIS 2090
Washington, DC 20529-2090 u.S. Citizenship and Immigration
Services
FILE:
PETITION: Iminigtant Petition {or Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptio .nal Ability Pursuant to Section 203(b)(Z)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) . ON J;3EHALF OF PETITIONER:
. INSTRUCTIONS:
Enclosed plf!a:se find the decision of the Administrative Appeals Office (AAO) in your case ~ This is a n 0 n~ prece<Ient deci~ion. The AAO does not announce new constructions of .law nor e.stabtish agency poliCy through non-precedent decisions.
Thank you,
)d(l ft
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
NON-PRECEI)ENT DECISION
DISCUSSION: The Director, Texas Service Center (director), approved the immigrant visa petition and certified the niattet to the Chief, Administrative Appeals Office (MO). The AAO withdrew the director's decision and denied the petition. A corporation that claims to be the petitioner's successor• in-interest now appeals th~ AAO's decision. Pursuant to the regulation at 8 · C.F.R § 103.3(a)(2)(v)(A)(J), the AAO will reject the corporation's submission as improperly filed. A director may certify a decision to the AAO ·~when the case involves an unusually complex or novel issu~ of law or fa.ct." 8 C.F.R. § 103.4(a)(1). Certification to the AAO may occur "only after an initial decision is made," 8 C.F.R. §§ 103.4(a)(4), (5).
T.he petitioner was a. software consulting company that sought to permanently employ the benefidary in the Unit~d States as a software engineer. On October 5, 2012, the director approved the petition, which requests claSsification-of the beneficiary as an advanced degree professional under section 203(b)(2)(A) of the Iriunigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A), and certified his decision to th.e AAO,
An EtA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL), accompanies the petition. The priority date of the petition, which is tbe date the DOL accepted the labor certification for processing, is March 18, 2011. See 8 C.F.R. § 204.5(d).
In his Not_ice of Certification, also dated October 5, 201:2, the director stated that the petition involves "a novel issu~" : whether classification as an advanced degree professional requires the beneficiary's
U.S. advanced degree to be issued by an accredited university.
On February 12, 2013, the AAO withdrew the d~rector's decision and denied the petition. the AAO found that U.S. Citizenship and Immigration Services (USCIS) regulations imply an accreditation req~ifement for U$. advanced degrees and that the ll.S. university that the beneficiary attended lacked accreditation when_ it issued his master's degree.
On March 15, 2013, "appealed" the AAO's decision, claiming to be the petitioner's successor-in-interest. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481, 482-83 (Comm'r 1986) (explaining the conditions under which an entit.y that acquires tbe essential rigbt_s and obligations needed to carry on a labor certification employer's · business can continu_e to offer a job opportunity for immigration purposes). asks the AAO to withdraw the director's certification and remand the case for issuance of a new Notice of Certific:atiol1. : claims tha.t the petitioner and its counsel, who also represents did not receive a Foi'ni I-290C, Notice of Certification~ See 8 C.F.R. § 103.4(a)(2) ("the official certifying the case shall notify the affected party using a Notice of Certification (Form I-290C).") Alternatively, asks the AAO to trea.t it$ "appeal'>' as a motion and grant counsel 30 days in which to submit a brief to support the motion.
On September 13, 2013, the AAO issued a Notice of Intent to Dismiss (NOID) the filing to a_nd counsel. Tht! notice informed them that the AAO lacks authority to adjudicate appeals ot Its own · decisions. See U.S. Dep't of Homeland Sec. De.leg~tion No. 0150.1 para. (2)(U) (Mar. 1, 2003) (granting USCIS the au:tho:rity to adjudicate only the appellate matters in the former regul'!tiop. at 8 C.F.R. § 103.1(f)(3)(iil) (2002)).
The notice also informed and couns.el that the AAO C(ln (lc;cept a filing only from an "affected party.'' See 8 C.F.R. § 103.3(a)(2)(v)(A)(J) (the AAO must reject an appeal filed by a person or entity not entitled to file it). The NOID stated that the AAO intends to reject the filing unless demonstrates a successor relationship to the petitioner, in which case the AAO may accept the filing as a motion to reopen.
Successor-in .. Interest
Under Dial, a sueceSSor-in-interest must: provide detailed evidence of the. terms of its acqu_isitiol.l of the labor certification. emplo.yer; demonstrate that the job opportunity remains the same as $tated. on the labor certification; and establish its eligibility for the immigrant visa petition in all respects, inclu.ding the conU11uip.g ~bility of it and tile labor certification employer to pay the proffered wage from the petition's priority date onward, See Dial, 19l&N Dec;. at 482-83. · filing included a copy of a November 16, 2012 merger agreement between it aod the petitioner. . chief executive officer (CEO), whom the agreement also identified as the petitiooer's CEO, signed the merger agreement for both and the petition~r. The agreement, wb_icb w~~ effective December 1, 2012, appeared self-serving and invalid because CEO signed the document for both p~rties. Therefore, the AAO, in its NOib, requested evidence of the authorization of CEO to sign the merger <tgreement for the petitioner.
The AAO also requested addi~ional .. evidence of the merger, which the agreement states ocqmed through· stock acquisition.
In response to the AAO's NOID, submits a copy of a written, corporate action, dated Jliile 16, 2012. The action purports to remove the petitioner's president as a director and officer of the petitioner, and a third company, as of June 21, 2012.1 The agreement also purports to appoint CEO as sole director of all tbree companies.
The corporate (lCtion identifies its signers as all of the shareholders of The agreement is signed by the petitioner's former president and whom the action identifies as the president and authorized representative of the petitioner, and
CEO, does not provide any further infofination or evidence a,bout or its shareholders.
Online informa,tion from the Delaware Department of State, Division of Corporations, states that was formed on February 16, 2012 and identifies CEO as the COillp(llly's registered agent. See "Entity Detl:lil," Del. Dep't of State, Div. of Corps., avai./able at https://delecotp.delaware.gov/tin/controller (a,ccessed Nov. 27, 2013).
In a written statement dated October 10, 2013, CEO states that the petitioner merged into Clnd tha~ all of the petitioner's assets, including its "business intangibles, customer lists and contracts, all person(ll property within the offices, all human resources including employees/professional consultants; 'and all i.ntellectual and . proprietary property," passed to Copies of the beneficiary's monthly payroll records from January 2011 through July ~013 indicate that he worked for the petitioner until December 2012, when he began working for Although has not provided information about or additional evidence regarding . the disposition of the petitioner's assets to corroborate the claimed merger, the AAO finds that .the preponderance ,of the ·evidence establishes that the petitioner merged into effective December 1, Z012.
As indicated above, a successor-in--interest must also·establish the continuing ability of it and the labor certification employer to pay the beneficiary's proffered wage from the petition's priority date, continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. § 2b4.5(g)(2). Evidence 6f ability to pay "shall be in the form of copies of annual reports, federal t<PC returns, or audited financ.ial statenierits." !d.
Iri the instant case, the proffered wage fot the offered position of softw(lre. engineer stated on the labor certification is $80,000 per year. Copies of the petitioner's annual reports, federal tax returns, , , ' or audited .financial statements for 2011, the year of the petition's priority date, were unavailable on the petition's filing da.te of October 26, 2011. Copies of the petitioner's 2010 federal income t(lx· return, the 2010 Internal Revenue Service (IRS) Form W-2 Wage and Tax Statement that it issued to the beneficiary, and monthly payroll t~cords of its employment of the beneficiary from January 2011 through August 2011 accompanied the petition.
The AAO's NOID, pursuant to the regulation at 8 C.F.R. § 204.5(g)(2), requested copies of the petitioner's annual report, federal tax returns, ot audited financial statements for 2011 and. 2012, and the same documents of for 2012. In response, submits copies of the petitioner's 2011 federal tax return, 2012 federal tax return, and copies of the p. 5 I.
-'· NON-PRECEDENT D£CISION
}>age 5 beneficiary's monthly payroll records from January 2011 through July 2013, which indicate that he worked for the petitioner until December 2012, When he began working for 2 does not. sl,lbmit co pie~ of the petitioner's 2012 annual report, federal tax retl1m, or ·audited financial statements a:s the regulation at 8 C.F.R. § 204.5(g)(2) requires and as the AAO requested in its NOID. Not does indicate that the -petitioner's :2012 records are unavailable or inapplicable. See "Publication 542: Corporations," U.S .. l)ep't of Treasury, internal Reven1Je Setv., p, 5, (Mar. 2012), available at http://irs.gov/pub/its-pdf/p542.pdf(acces _sed Nov. 27. 2013) (unless exempt from ~nGome taxes, all U.S. corporations in existence fot any part of a, tax year lnust fil~ an income tax return, even if they did not earn taxable income). · In "appropriate c~ses," l)SCIS may co~sider or request additional eviden_ce of a petitioner's eibllity to pay the proffered wage, such as copies of payroll records. 8 C.F.R. § 204.5(g)(2). But a petitioner may not substitute additional materials for evidence that the regulation at 8 C._F.R. § 204.5(g)(2) reqt~ires. Therefore, the copies of the beneficiary's payroll records do not establish the petitioner's ability to pay his proffered wage in 201 L.
In addition, does not submit copies of the beneficiary's 2011 and 201:2 Forms W-2, as the AAO's NOID suggested. The AAO considers Forms W-2 more reliable evidence of a beneficiary's employment than payroll records because employers must S\lbmit Forms W-2 to the U.S.
· Page 6
For example, the labor certification states that the offered position involves "using various moduJes of SAP ancl/or other technologies such as Oracle and Java (J2EE) applications." But the job duties of the benefi~iary' s current position, as stated on the labor certification, do not include Oracle and Java (J2EE) applications among the "software and tools used." has not submitted any documentary evidence that it.intends to employ the beneficiary in t.be offered position as the AAO's NOlO requested. Evidence of employment of the beneficiary in his Cl.l,rrept position does not establish that intends to employ him in the offered position, Therefore, the record does not establi~h tha..t the job opportunity remains the same one that the DOL certified.
For the foregoing reasons, has not demonstrated that it is a successot~in~interest tq the petitioner. Because has not established that it is a successor-in-interest to the petitioner, Streamline is not an "affect~d party" in this m3;tter. Therefore, pursuant to the regulation at 8 C.F.R. § 103.3(a)(2)(v)(A)(l), the AAO cannot accept its filing.
Notice of Certification
Even if _ estabFshed itself as a su'*s~or,-in-interst to the petitioner, the record does not demonstrate that USCIS failed to notify the petitioner of the director's certified decision as the regulation 8 C.F,R. § 103A(a)(2) requires. The record also does not establish that a violation of the regulation at 8 C.F.R . .§ 103.4(a)(2) would merit a remand to the director for issuance 9f a new Notice of Certification.
Aii addressee is·presumed to receive ordinary mail that is properly sent. See Santana Gonzalez v. Att'y Gen., 506.F.3d 274, 278 (3d Cir. 2007)? A petitioner can rebut this presumption by submitti~g contrary evidence, such as a sworn affidavit from the intended recipient supported by circumstahti'al evidence corroborating the cla..jm of non-receipt. /d. at 280.
· In the instant case, USCIS's file contains a copy of a Notice of Certification, dated October 5, 2012 and addressed to the petitioner, with a copy to eounsel. The copy of the notice establishes a presumption that the petitioner ,and counsel received the notice that USCIS sent by ordinary mail. The record of proceedings does not contain any returned or undeliverable mail, which might indicate that the addresses on record at the tiine ofcertification were incorrect.
Page 7 , __ circumstantial evidence supporting its claim of non-r~<;;eipt as the Third Circuit's holding in Santana Gonzalez requires. ·
Moreover, even if USCIS had failed to fulfill the reglll~li.on at 8 C.F.R. § 103.4(a)(2), proceedings may be invalidated only where the regulation provides a benefit to the alien and the viol~tjon prejudiced an interest that the regulation was designed to protect. Calia-Collado v. Att y Gerz. of US., 663 F.:3d 680, 684 (3d Cir. 2011) (citingMattet ofGarcia-Flotes, 17 I&N Pee. 325 (BIA 1980)).
Here; the Noti~ of Certification indicated the director's approval of the petition. has not established that its claimed inability to brief the und~rlying accreditation issue on certification prejudiced the petitioner. Assuming that established itself as a successor-in-interest to the petitioner, (,llso has not explained why its ability to submit a motion to reopen and/ot · reconsider the AA.O's decision on certification would not be an appropriate remedy for a violation of 8 C.F.R. § 103.4(a)(2).
Indeed, since the AAo issued its decision on certi.tication. more than 9 months ago, has not addressed the underlying accreditation issue, despite oppormnit.ies to submit a brief and/or evidence with it~ "appeai" and with its response to the AAO's NOID. As discussed in the NOID, S~reamline indicated that it would brief the issue within 30 days of flling its "appeal." However, the AAO received i no brief or additional evidence before it issued its NOll). Strea.IIlline has not taken advantage of prior opportunities to be heard. The record of proceeding fails to establish a beneficial re()Son to r~mand this matter for recertification, further delaying the~e proceedings and burdening administrative resources. Conclusion
In Sllmirtaty, the AAO finds that has not established itself as a successor-in~intereSt to the is not an affected party in these proceedings , As petitioner. Th~rl):fore, "appeal" was improperly § 103.3(a)(2)(v)(A)(l).