US: USCIS Releases Guidance on I-140 Successor-in-Interest Petitions
LATEST NEWS US: USCIS Releases Guidance on I-140 Successor-in-Interest Petitions
U.S. Citizenship and Immigration Services (USCIS) has recently released an internal memorandum that provides guidance on the adjudication of labor certification-based I-140 petitions for successor-in-interest employers.
In a recently released internal memorandum, U.S. Citizenship and Immigration Services (USCIS) provides guidance that suggests a more expansive approach in the adjudication of labor certification-based I-140 immigrant petitions. The memorandum concentrates on scenarios where a change in employer ownership occurs between the approval of a labor certification application and the granting of lawful permanent residence.
Previous guidance issued by legacy Immigration and Naturalization Service (INS) recognized that the transfer of ownership from the predecessor to a successor company could occur through a merger, acquisition, or reorganization. The new memo notes that a transfer may also take place through a spinoff or other change in ownership structure, and provides a more flexible approach to adjudicating I-140 permanent residence petitions that “present novel yet substantiated and legitimate successor-in-interest scenarios.”
In the past, the USCIS standard for adjudicating successor-in-interest petitions varied, but in formal policy memoranda issued by legacy INS, it typically enunciated a standard recognizing successorship only where a new employer had assumed all of the rights, duties, obligations and assets of the original employer. For a period of time, a different standard focusing on the successor’s assuming immigration-related liabilities was suggested in agency policy letters and at conferences, but it was not consistently followed by the Service Centers.
Relevant Criteria in Successor-in-Interest Adjudications
The new guidance supersedes all previous guidance on I-140 successorship, and revises the Adjudicator’s Field Manual to include relevant factors for determining whether a successor-in-interest relationship exists that will allow a new employer to rely on a previously approved labor certification or I-140 petition. Specifically, the three factors are:
(1) Whether the job opportunity offered by the successor employer is the same as originally offered in the labor certification;
(2) Whether the successor has met the burden of establishing eligibility in all respects, including the ability to pay the proffered wage; and
(3) Whether the successor has provided sufficient description and documentation of the transfer of ownership.
The memorandum outlines evidentiary requirements and offers some examples of how it will approach successorship determinations in the future. We will be actively monitoring trends in case adjudications to determine the full impact of the new directive.
Additional Processing Issues
If an I-140 petition has already been adjudicated, the successor employer will need to file an amended I-140 petition to re-affirm the validity of the original.
The memorandum outlines evidentiary requirements, and clarifies that it is not intended to affect situations where a foreign national is eligible for adjustment of status portability.
Petitioners may also file amended petitions where they believe that a previous successorship decision was not properly decided. Motions to re-open will not be granted unless still within the allowed timeframe after a denial.
Finally, on a positive note, the agency clarifies that amended petitions are generally not required for employer name changes, or for address changes if the new location is in the same area of intended employment, and that USCIS Service Center directors may consider an employer’s request to consolidate the filing and adjudication of multiple successor petitions based on the same transfer and ownership change.
See http://www.uscis.gov/memoranda if you would like to review the memorandum, dated August 6, 2009, in its entirety.
If you have any questions about this Client Alert, please contact your designated Fragomen professional.
Source: Fragomen
