Matter of Dial Auto Repair Shop, Inc.

The petition was denied by the district director, New York, New York, and is now before the Commissioner on appeal. The appeal will be dismissed. The petitioner in this matter is an auto repair shop which has offered the beneficiary a permanent position as an automotive technician. On May 17, 1983, the beneficiary's former employer, Elvira Auto Body Repair Shop, filed an Application for Alien Em- ployment Certification (Form ETA 750) with the Department of Labor, wherein a labor certification was sought on behalf of the beneficiary. Prior to the issuance of the certification, Elvira Auto Body was dissolved and ceased doing business. A labor certification was subsequently issued on April 25, 1984; the petitioner's business was founded at the same location in May 1984; a name change was approved by the certifying officer on September 10, 1984; and the above petition was submitted on April 17, 1985, along with the job offer and labor certification issued to Elvira Auto Body. The district director tltei mined that the petitioner appears to have had the financial ability to pay the beneficiary the wage of- fered in the job since being founded in 1984; however, no evidence was submitted to establish that Elvira Auto Body could have paid

该申请被纽约州纽约区的地区局长否决，现因上诉而提交至专员。上诉将被驳回。 本案中的申请人是一家汽车修理店，其为受益人提供了一个汽车技师的永久职位。1983年5月17日，受益人的前雇主Elvira Auto Body Repair Shop向劳工部提交了外籍人士雇佣认证申请（ETA 750表），其中为受益人寻求劳工认证。在认证签发之前，Elvira Auto Body已解散并停止经营。劳工认证随后于1984年4月25日签发；申请人的企业于1984年5月在相同地点成立；名称变更于1984年9月10日获认证官批准；上述申请于1985年4月17日提交，连同签发给Elvira Auto Body的职位要约和劳工认证。 地区局长认定，申请人似乎自1984年成立以来具有支付受益人所提供职位工资的财务能力；然而，未提交证据证明Elvira Auto Body在1983年5月17日——即根据Matter of Great Wall, 16 I&N Dec. 142 (Acting R.C. 1977)签证申请提交之日——能够支付

the wage on May 17, 1983, the date the visa petition was filed ac- cording to Matter of Great Wall, 16 I&N Dec. 142 (Acting R.C. 1977). The district director found that if he were to approve the visa petition, such approval would have the effect of granting the beneficiary a priority date to which the evidence of record does not show him to have been entitled. Consequently, it was concluded that the petitioner has failed to establish it had the ability to pay the proffered wage at the time the visa petition was filed. Counsel argues that the petitioner has no access to the financial records of Elvira Auto Body and that it is unreasonable to expect Dial Auto Repair to obtain documents which are beyond its reach. (Elvira's former officers are said to have left the New York metro- politan area.) Counsel maintains that what is at issue is whether the petitioner has been able to pay the proffered wage, not whether Elvira Auto Body could have. The Department of Labor has been consulted in this matter. We have been informed that the certifying officer determined the job opportunity offered by Dial Auto Repair to be the same as the job opportunity offered by Elvira Auto Body. Therefore, since 20 C.F.R. §656.30 (1987) provides that labor certifications are valid indefi- nitely unless invalidated by the Service, a consular officer, or a court for fraud or willful misrepresentation of material fact involv- ing the labor certification application, we must conclude that May 17, 1983, is the proper filing date of the petition. Because the job opportunity offered by the petitioner is the same as that offered by Elvira Auto Body, it is incumbent upon the petitioner to establish that the wage offer could have been met when the application for a labor certification was accepted for processing by the Department of Labor. Presumably, Elvira Auto Body was no longer in a position to meet the proffered wage at the time of its dissolution. The peti- tioner's inability or refusal to resolve these doubts causes us to find that the benefit may not be accorded. Additionally, the representations made by the petitioner concern- ing the relationship between Elvira Auto Body and itself are issues which have not been resolved. In order to determine whether the petitioner was a true successor to Elvira Auto Body, counsel was instructed on appeal to fully explain the manner by which the peti- tioner took over the business of Elvira Auto Body and to provide the Service with a copy of the contract or agreement between the two entities; however, no response was submitted. If the petition- er's claim of having assumed all of Elvira Auto Body's rights, duties, obligations, etc., is found to be untrue, then grounds would exist for invalidation of the labor certification under 20 C.F.R. § 656.30 (1987). Conversely, if the claim is found to be true, and it is

1983年5月17日的工资，根据Matter of Great Wall, 16 I&N Dec. 142 (Acting R.C. 1977)，该日期为签证申请提交之日。地区主任认定，如果他批准该签证申请，此种批准将具有授予受益人优先日的效力，而记录中的证据并未显示受益人有权获得该优先日。因此，得出的结论是，申请人未能证明其在提交签证申请时具有支付所提供工资的能力。 律师主张，申请人无法获取Elvira Auto Body的财务记录，且期望Dial Auto Repair获取其无法触及的文件是不合理的。（据称Elvira的前任管理人员已离开纽约大都会地区。）律师坚持认为，争议点在于申请人是否能够支付所提供工资，而非Elvira Auto Body是否能够支付。 已就此事咨询劳工部。我们获悉，认证官认定Dial Auto Repair提供的工作机会与Elvira Auto Body提供的工作机会相同。因此，由于20 C.F.R. §656.30 (1987)规定，除非因涉及劳工认证申请的欺诈或对重大事实的故意虚假陈述而被移民局、领事官员或法院宣告无效，劳工认证无限期有效，我们必须认定1983年5月17日为该申请的适当提交日期。由于申请人提供的工作机会与Elvira Auto Body提供的工作机会相同，申请人有责任证明在劳工部受理劳工认证申请进行审理时，该工资要约本可得到满足。据推测，Elvira Auto Body在其解散时已不再有能力满足所提供工资。申请人未能或拒绝消除这些疑问，致使我们认定不能给予该利益。 此外，申请人就Elvira Auto Body与其自身之间关系所作的陈述是尚未解决的问题。为确定申请人是否为Elvira Auto Body的真正继承者，上诉时已指示律师充分解释申请人接管Elvira Auto Body业务的方式，并向移民局提供两实体之间的合同或协议副本；然而，未提交任何答复。如果申请人声称已承担Elvira Auto Body全部权利、义务、责任等的主张被认定为不实，则存在根据20 C.F.R. § 656.30 (1987)使劳工认证无效的理由。反之，如果该主张被认定为属实，且

determined that an actual successorship exists, the petition could be approved if eligibility is otherwise shown, including ability of the predecessor enterprise to have paid the certified wage at the time of filing. We conclude that the petitioner has failed to establish that the wage offer could have been met at the time the application for a labor certification was accepted for processing by the Department of Labor. Furthermore, the petitioner's failure to adequately de- scribe the transfer of business from Elvira Auto Body to Dial Auto Repair causes us to find that the beneficiary is not clearly entitled to sixth-preference classification on the basis of this petition. The appeal must therefore be dismissed. ORDER: The appeal is dismissed.

认定存在实际承继关系，则在其他方面显示具备资格（包括前企业在提交时具有支付经认证工资的能力）的情况下，该申请可获批准。 我们认定，申请人未能证明在劳工部接受劳工认证申请处理时该工资要约本可得到满足。此外，申请人未能充分描述从Elvira Auto Body到Dial Auto Repair的业务转让，使我们认定受益人并非明确有权基于本申请获得第六优先分类。因此，上诉必须被驳回。 命令：上诉被驳回。