The Petitioner, an information technology company, seeks to employ the Beneficiary as a project manager(IT). ItrequestedclassificationoftheBeneficiaryasamemberoftheprofessionsholdingan advanceddegreeunderthesecondpreferenceimmigrantcategory. ImmigrationandNationalityAct(the Act)section203(b)(2), 8U.S.C.§1153(b)(2). Thisemployment-based"EB-2"immigrantclassification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The petition was initially approved. However, upon further review, the Director of the Nebraska Service Center revoked the approval. The Director determined that certain language in H.14 of the labor certification exceeded the "Kellogg language" and altered the minimum requirements of the labor certification and could potentially allow a beneficiary to qualify for the job offered with less than a master's degree or a bachelor's degree and five years of postgraduate experience in the specialty, On appeal, the Petitioner provides evidence and a brief asserting that the minimum requirements specified on its labor certification are consistent with the petition's classification request of advanced degree professional.
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See Section291 oftheAct,8U.S.C. §1361. Upondenovareviewoftheevidenceandargumentsmade on appeal, we conclude that the Petitioner has overcome the basis for the revocation. However, the This regulation was intended to incorporate the Board o f Alien Labor Certification Appeals (BALCA) ruling in Francis Kellogg , 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 1998) (en bane). The statement on the laborcertificationthatan employerwill accept applicants with "anysuitable combination ofeducation,trainingorexperience"is commonly referred to as "Kellogg language." and thus did not support the requested classification of advanced degree professional. Theregulationat20 C.F.R. § 656.l 7(h)(4)(ii)states:
If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable. p. 2 recordaspresentlyconstituteddoesnotsupportthepetition'sapproval. Therefore,wewillwithdraw the Director's decision and remand the matter for entry of a new decision consistent with the analysis below.
Legal Framework
Immigration as an advanced degree professional generally follows a three-step process. First, a prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) employment of a noncitizen in the position would not harm wages and working conditions of U.S. workers with similarjobs. See section 212(a)(5) of the Act, 8 U.S.C. § l 182(a)(5).
Second, an employer must submit an approved labor certification 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 determines whether a noncitizen beneficiary meets the requirements of a DOL-certifiedpositionandarequestedimmigrantvisacategory. 8C.F.R.§204.5(1).
Finally, if USCIS approves a petition, a beneficiary 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. "[A]t any time" before a beneficiary obtains lawful permanent residence, USCIS may revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supportedbyarecord,theerroneousnatureofapetition'sapprovaljustifiesitsrevocation. Matterof Ho, 19 I&N Dec. at 590.
USCIS properly issues a notice of intent to revoke (NOIR) a petition's approval if the unexplained and unrebutted record at the time of the notice's issuance would have warranted the petition's denial Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). If a NOIR response does not rebut or resolve alleged revocation grounds, USCIS properly revokes a petition's approval. Id. at 451-52.
Successor-in-Interest
The record shows that after this petition was filed and approved in 2016, the Petitioner was acquired by a French entity in 2018. In 2019, a newly fom1ed entity - 1- filed an amended After we initially reviewed the record on appeal, we issued a notice of intent to reject, informing the Petitioner that its acquisition, which preceded the filing date of this appeal, may adversely impact the validity of the instant petition. However, based on the response submitted, we will remand the matter to the Director for further consideration ofthe successorship issue.I Imust establish that it is the valid successor-in-interest to the entity that filed the labor certification in order to continue to rely on the underlying labor certification in this matter.
A labor certification remains valid only for '"the particular job opportunity," the noncitizen, and the geographical area of intended employment stated on it. 20 C.F.R. § 656.30(c)(2); see also section 204(a)(l )(F) of the Act (stating that the Petitioner must "desir[e] and intend[] to employ [a designated 2 Thereceiptnumberofthe amended Form 1-140 is _ _ _ _ petition seeking to employ the Beneficiary as the Petitioner's successor-in-interest. p. 3 noncitizen] within the United States"). Thus, if the Petitioner no longer does business or no longer intends to employ the Beneficiary in the offered position, the petition may not be approved. However, the Petitioner may still rely on the petition and the accompanying certification if evidence shows that a "successor-in-interest" of the Petitioner- a subsequent owner of the Petitioner's business- intends to employ the Beneficiary in the offered position. See Matter o fDial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986).
For immigration purposes, a successor-in-interest must demonstrate its acquisition of assets and liabilities needed to carry on a predecessor's business or a discrete part of it. See id. at 482-83; see also Memorandum from Donald Neufeld, USCIS Acting Assoc. Dir., Domestic Ops., Successor-in- Interest Determinations in Adjudications o fForm 1-140 Petitions, HQ 70/6.2 AD 09-37, 8 (Aug. 6, 2009) (stating that "[t]he evidence provided must show that . . . the successor acquired the essential rights and obligations necessary to carry on the business in the same manner as the predecessor"). A successor-in-interestmust: 1)fullydescribeanddocumentthetransaction(s)leadingtoitsacquisition of the employer's business; 2) establish that, exceptfortheprospectiveemployer, the job offer remains the same as stated on the accompanying labor certification; and 3) demonstrate eligibility for the requested benefit, including the abilities of the successor and the labor certification employer to continuously pay the proffered wage of an offered position from a petition's priority date onward. Id.
In response to our notice of intent to reject the appeal, the Petitioner submitted an "Agreement and Plan of Merger," outlining the company's merger with a wholly owned subsidiary ofthe French entity that acquired the Petitioner. The document indicates that upon completion of the merger, the subsidiary immediately ceased to exist, and the Petitioner survived the transaction as the wholly owned subsidiaryoftheFrenchcompany. Insum,theagreementandplanofmergerdocumentdiscusseda business transaction that involved the Petitioner, its French parent entity, and the French entity's wholly owned subsidiary that merged with the Petitioner. Because! Ithe purported successor, was not a party to the merger that was detailed in the agreement and plan of merger, that document does not establish the claimed successorship between the Petitioner andl I We further note that online government records indicate that the purported successor did not exist at the time of the merger, and, therefore, does not appear to be the resulting formed successor. See Mich. Dep't of Licensing & Regulatory Affairs, "Corporations Online Filing System," https://cofs.lara.state.mi.us/SearchApi/Search/Search (last visited September 6, 2022).
Further, section 10.6 of the agreement and plan of merger states that the Petitioner's acquisition was governed by Delaware state law. Under Delaware law, a merger structured like the one involving the Petitioner - a "reverse triangular merger" - does not transfer assets or liabilities from an acquired company. Mesa Scale Diagnostics, LLCv. Roche Diagnostics, GmbH, 62A.3d62, 88 (Del. Ch. 2013) (upholding "the general understanding that a reverse triangular merger is not an assignment by operationoflaw"). Forthisadditionalreason,theagreementandplanofmergerdocumentdoesnot establish the purported successorship between the Petitioner andI I The Petitioner also submitted an "Assignment Agreement," showing that its assets and liabilities were transferred to the purp01ied successor in June 2019. However, because the record indicates that the Petitioner's business involved providing integrated IT and "knowledge process" services to corporate clients in addition to client service agreements, the Petitioner's business likely required workers with IT and business knowledge to service the company's clients. See Neufeld Memo, supra, at 8 (requiring a successor to show that it "acquired the essential rights and obligations necessary to carry on the p. 4 business in the same manner as the predecessor"). Although the Petitioner claims that the assignment agreement shows "the transfer of assets, liabilities, obligations, and employees" to the purported successor, the agreement does not support this claim as it does not specify the Petitioner's assignment of workers to its purported successor. (Emphasis added). Rather, it specifies only the Petitioner's assignment of obligations, rights, and interests in its "service agreements and all Statements of Work and other agreements under the service agreements."
Lastly, the record includes a copy ofa June 2019 approval notice ofa "blanket L" nonimmigrant visa petition. See 8 C.F.R. § 214.2(1)(4) (allowing eligible petitioners to obtain approvals of themselves and their parents, branches, subsidiaries, and affiliates as "qualifying organizations" to expedite issuances of L-1 visas to their employees). Although the approval notice indicates that USCIS found the Petitioner andl Ito be wholly owned subsidiaries of the French parent company, the approved blanket notice does not indicate whether the purported successor acquired the rights and obligations needed to carry on the Petitioner's business to meet the definition of a successor-in- interest.
I n l i g h t o f t h e a b o v e , t h e r e c o r d d o e s n o t c u r r e n t l y d e m o n s t r a t e t h a t l Ia c q u i r e d a l l t h e a s s e t s andliabilitiesneededtocarryonthePetitioner'sbusiness. TheDirectormaywishtorequestfurther evidence related to this issue on remand and provide the Petitioner an opportunity to respond.
Conclusion
Because the Petitioner was not fully informed ofthe above-described evidentiary deficiencies, we will remandthematter. Onremand,theDirectorshouldissueanewNOIRthatwillexplainandallow1he Petitioner to an opp01iunity to address the evidentiary deficiencies and offer evidence in supp01i of the petition. 8 C.F.R. § 205.2(a).
If supported by the record, the new NOIR may include any additional, potential revocation grounds. The Director, however, must provide the Petitioner with a reasonable opportunity to respond to all issues raised on remand. Upon receipt of a timely response, the Director should review the entire record and enter a new decision.
ORDER: ThedecisionoftheDirectoriswithdrawn. Thematterisremandedforentryofanew decision consistent with the foregoing analysis.