The Petitioner seeks to employ the Beneficiary as a computer systems analyst. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. Immigration and Nationality Act section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Texas 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. Section 291 ofthe Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal.
The Employment-Based Immigration Process
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). ofthe 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 o f domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) o f the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, the foreign national applies for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 o f the Act, 8 U.S.C. § 1255.
The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is April 7, 2011. See 8 C.F.R. § 204.S(d).
See section 212(a)(5)(A)(i)
Successor-in-Interest
The Director concluded that the Petitioner did not establish that it was the successor-in-interest to the entity that filed the labor certification. Here, the labor certification was filed byl I The Petitioner asserts that it is the successor-in-interest to D A valid successor-in-interest relationship exists ifthree conditions are satisfied. See Matter ofDial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986). First, the Petitioner must fully describe and document the transfer and assumption ofthe ownership ofthe predecessor by the successor. Id. Pursuant to an asset purchase agreement (APA) dated July 8, 2015, between O a n d the Petitioner, O s o l d certain assets to the Petitioner as detailed on Exhibit 1 to the APA. The Agreement specifically states that the Petitioner a s s u m e d D s obligations for the current Form I-140. The Director stated in his decision that the APA does not indicate that the Petitioner "took over all assets, liabilities and responsibilities"ofc=] TheDirectorappearstohavestrictlyinterpretedMattero_fDialAutotolimit a successor-in-interest finding to cases where a petitioner shows that it assumed "all" of the original employer's rights, duties, obligations, and assets. However, Matter ofDial Auto does not stand for the proposition that a valid successor relationship may only be established through the assumption of "all" or a totality of a predecessor entity's rights, duties, and obligations. Instead, the generally accepted definition of a successor-in-interest is broader: "One who follows another in ownership or control of property. A successor in interest retains the same rights as the original owner, with no change in substance." Black's Law Dictionary 1570 (9th ed. 2009) (defining "successor in interest").
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 purchase 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 obligations of the predecessor necessary to carry on the business.
~rations § 2170 (2010). Thus, as noted above, the Petitioner was not required to purchase all of L _ 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 o f the predecessor necessary to carry on the business.
In the RFE, to establish the bona fides o f acquisition, the Director specifically requested evidence that the full purchase price had been paid by the Petitioner for the assets listed in the APA. As noted by the Director in his decision, the Petitioner did not submit evidence of the exchange of compensation in its RFE response. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). On appeal, the Petitioner's counsel asserts that the Petitioner made payments under the APA totaling $50,000 from its checking account with I I However, counsel did not support this assertion with any supporting evidence. Assertions ofcounsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 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 rrom 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).
See generally 19 Am. Jur. 2d
1988) (citing Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)).
Further, D was administratively dissolved in the state of Kentucky in September 2015. The Director stated that as a result ofthe dissolution, the record does not establish that the Petitioner took over all assets, liabilities, rd responsibilities ofc=] We agree. The APA states that the Petitioner was required to pay $25,000 at closing in July 2015, and $25,000 on or prior to D e c e m b ~ 2015. The record does not establish that the full purchase price was paid prior to dissolution o f l _ _ J in September 2015. As previously noted, the record does not contain evidence of the exchange of compensation pursuant to the terms of the APA. Thus, it is not clear that the terms of the APA were fully satisfied.
The Director also determined that the APA was not properly signed by an authorized agent o f O The APA was signed on behalfo O b y ~ -------~ · At that time, the sole member of D wasI Iand the corporate records from Kentucky indicate that D was member-managed. The record does not contain any documents establishing the officers, directors, or authorized agents o f ~ - - - - - - ~
On appeal, the Petitioner asserts that "whileI Iwas engaged as an independent contractor, the latter was also re-appointed to an officer position as is customary in such transactions such thatl I was able to execute documents on the organization's behalf." It submits an email from its corporate counsel stating that after the sale of her equity interest i n D i n 2012,I l"was appointed as the operating officer f o r D a n d she continued in this capacity until the dissolution of the company in 2015." However, counsel's assertions are not supported by the evidence in the record. Pursuant to Exhibit A of a rc;rurchase agreement dated May I, 2012,I lresigned as a director, officer and member of There are nro company documents in the record establishing thatl lwas reappointed to an o hce~ion
April 30, 2012, betweenl__Jand states that she resigned as an operating officer o f O and that she shall "not have any supervisory or employee management role with the company." ~ f o r e , the record does not establish that the APA was properly signed by an authorized agent ofl__J For the reasons discussed above, the record does not fully describe and document the transfer and assumption ofthe ownership ofc=] by the Petitioner, and the first prong ofa valid successor-in-interest relationship has not been met.
Second, the job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification. Id. at 482. The Petitioner has established the second prong of a valid successor-in-interest relationship.
Third,thesuccessormustestablisheligibilityfortheimmigrantvisainallrespects. Thesuccessormust 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. § I04.5]g)(2); see also Matter ofDial Auto, 19 I&N Dec. at 482. Here, the Petitioner has not established s ability to pay The Petitioner asserts on appeal that it assumed a $610,331.02 tax levy as palt of the asset transfer. However, the APA does not list the tax levy as a liability that was transferred. The APA specifically states that "the transfer of the assets pursuant to this Agreement shall not include the assumption of any liability of the Seller other than as specifically noted in this Agreement." any tije thereafter. An independent contractor agreement dated p. 4 the proffered wage as ofthe priority date until the purported date oftransfer ofownership on July 8, 2015. The proffered wage is $85,000 per year, and the priority date is April 7, 2011.
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability ofprospective employer to pay wage. Any pet1t10n 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 topaytheprofferedwage. Thepetitionermustdemonstratethisabilityatthetimethe 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll proffered wage each year from a petition's priority date. I f a petitioner did not pay a beneficiary the foll proffered wage, we next examine whether it had sufficient annual amounts of net income or net current assets to pay the difference between the proffered wage and the wages paid, if any. If a petitioner's net income or net current assets are insufficient, we may also consider other evidence of In this case, the Petitioner submitted no regulatory-prescribed evidence of c = ] s ability to pay the proffered wage for 2011, 2012, 2013, 2014, and from J a n u ~ 2015, to July 8, 2015. See 8 C.F.R. § 204.5(g)(2). Absent such evidence, we cannot find that L _ J h a d the ability to pay the proffered wage in these years.
The Petitioner provided a letter from its vice president of operations stating that it has more than 100 employeesandtheabilitytopaytheprofferedwage. However,theletterwaswrittenonbehalfofthe Petitioner and not D Therefore, the letter does not serve as evidence o f O s ability to pay the proffered wage. The record does not establish L J s continuing ability to pay the proffered wage its ability to pay the proffered wage. from the petition's priority date until the date ofthe purported transfer ofassets to the Petitioner. the third prong of a valid successor-in-interest relationship has not been met, and the Petitioner has not established a valid successor-in-interest relationship with D ORDER: The appeal is dismissed.
Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi v. Dep 't ofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). The record establishes the Petitioner's ability to pay the proffered wage from 2015 to 2017. If the Petitioner pursues this matter further, it must also establish its ability to pay from 2018 onward.
Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. Thus,