A. Successor Requests to Use a Predecessor’s Approved Permanent Labor Certification
When a company is bought, merged, changes corporate structure, or significantly changes owners, the new or reorganized company may demonstrate to USCIS that it can be considered a successor in interest (successor) of the original company to assume the predecessor’s prior immigrant benefits requests.
If such a successor company acquires all or some of a business from a predecessor company, it may file a petition that requests to use the approved permanent labor certifications that the predecessor filed with the U.S. Department of Labor (DOL). Such successor may also file a new or amended petition if the predecessor has already filed a petition.
The employer must file such petitions within the validity period of the permanent labor certification with supporting evidence.
B. Situations Not Requiring a New or Amended Petition
Not every change to the petitioner’s name or, in certain cases, the location where the beneficiary is to be employed requires a new or amended petition. Specifically, the petitioner does not need to file a new or amended Immigrant Petition for Alien Workers (Form I-140) due to:
- A legal change in the name of the petitioner, including a petitioner’s “doing business as” (DBA) name, if the ownership and legal business structure of the petitioner remains the same; or
- A new job location, if the new business location and job are within the same metropolitan statistical area of intended employment stated on the permanent labor certification.
When the beneficiary files an Application to Register Permanent Residence or Adjust Status (Form I-485) with USCIS or applies for an immigrant visa with the U.S. Department of State, the beneficiary may need to document that the petitioner is the same petitioner that filed the petition or that the job opportunity is still located in the area of intended employment specified on the permanent labor certification.
C. Change in Employer Due to Transfer of Ownership to a Successor
Successor-in-interest entities that wish to rely on the approval of a petition and the permanent labor certification filed by a predecessor entity must file an amended petition that demonstrates that a qualifying successor-in-interest relationship exists in accordance with the three successor-in-interest factors.
D. Consolidated Processing of Multiple Successor-In-Interest Petitions
Each successor-in-interest petition must be evaluated according to the three factors and is adjudicated on its own merits with regard to eligibility for the visa preference classification requested in the petition. However, multiple filings based on the same transfer and assumption of the ownership of the predecessor by the successor may have duplicative evidence provided in each case to establish the transfer and assumption of the ownership of the predecessor by the successor.
In the interest of efficiency and consistency, USCIS may elect to accept consolidated evidence (for example, one copy of the U.S. Securities and Exchange Commission Form 10-K for 20 petitions instead of 20 copies of the SEC Form 10-K). Additionally, USCIS may coordinate the adjudication of multiple pending successor petitions so that the petitions are adjudicated at a single USCIS office or at the same time or both, to the extent that other pressing work priorities permit.
Petitioners can initiate a request for the consolidated processing of multiple successor-in-interest cases affected by the same transfer of ownership through the USCIS Contact Center or, if applicable, the appropriate Premium Processing mailbox. USCIS reviews the submitted request and any related documentation when determining whether USCIS may accept the consolidated evidence. The decision to grant a request for consolidated case processing rests solely with USCIS.
E. Successor-In-Interest Determinations
Interpretation of Matter of Dial Auto Repair Shop, Inc.
The legacy Immigration and Naturalization Service (legacy INS) Commissioner in Matter of Dial Auto Repair Shop, Inc. (PDF), examined a petitioner (the successor) who had taken over some functions of the employer who filed the permanent labor certification (the predecessor). The Commissioner found that the petitioner failed to adequately describe how it had acquired its predecessor, Elvira Auto Body’s, business. As a result, Dial Auto Repair Shop failed to meet its burden and was not eligible to claim continued validity of the original permanent labor certification.
The Commissioner stated that if Dial Auto Repair Shop’s “claim of having assumed all of Elvira Auto’s rights, duties, obligations, etc., is found to be untrue, then grounds would exist for invalidation of the labor certification . . . . Conversely, if the claim is found to be true, and it is determined that an actual successorship exists, the petition could be approved if eligibility is otherwise shown . . . .” Notably, the Commissioner did not state that a valid successor relationship could only be established through the assumption of all the predecessor entity’s rights, duties, and obligations.
The definition of a successor is “someone who succeeds to the office, rights, responsibilities, or place of another; one who replaces or follows a predecessor.” Similarly, the term “successor” with reference to corporations is defined as “a corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation.”
These definitions are consistent with the determinations made in Matter of Dial Auto Repair Shop, Inc., which highlight three factors that should be considered when determining if a previously approved or pending permanent labor certification remains valid for successor-in-interest petition adjudications.
F. Factors for Successorship Determinations
The three successor-in-interest factors are:
- The job opportunity offered by the successor must be the same as the job opportunity originally offered on the permanent labor certification;
- The successor bears the burden of proof to establish all elements of eligibility as of the priority date, including the provision of required evidence from the predecessor entity, such as evidence of the predecessor’s ability to pay the proffered wage; and
- For a valid successor-in-interest relationship to exist between the successor and the predecessor that filed the permanent labor certification, the petition must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.
If a business can establish these three factors, an officer may find a valid successor-in-interest relationship even in situations where a successor does not wholly assume a predecessor entity’s rights, duties, and obligations.
1. Same Job Opportunity
The job opportunity offered by the successor must be the same as the job opportunity originally offered on the permanent labor certification.
The job offered in the successor-in-interest petition by the successor must remain unchanged with respect to the rate of pay, metropolitan statistical area, job description, and job requirements specified on the permanent labor certification. USCIS denies successor-in-interest claims where the position with the successor is changed such that the rate of pay, job description, or requirements specified on the permanent labor certification no longer relate to the labor market test.
In other words, officers should deny any successor claim where the changes to the rate of pay, job description, or job requirements, as stated on permanent labor certification, if made at the time that the permanent labor certification was filed with DOL, could have affected the number or type of available U.S. workers who applied for the job opportunity. However, an increase in the rate of pay due to the passage of time does not affect the successor-in-interest claim.
The job opportunity must also remain valid and available from the time of the filing of the permanent labor certification with DOL until the issuance of an immigrant visa abroad or the beneficiary’s adjustment of status to lawful permanent resident while in the United States. Otherwise, a new test of the labor market and new permanent labor certification application by the successor employer is required.
The original job opportunity ceases to exist if, at any time before the transfer of ownership, the predecessor ceases business operations entirely or even partially so that the beneficiary’s services are no longer required or the business operation in which the job opportunity was originally offered has a substantial lapse in business operations after the transfer of ownership.
2. Transfer and Assumption of Ownership
For a valid successor-in-interest relationship to exist between the successor and the predecessor that filed the permanent labor certification, the petition must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.
For successor-in-interest purposes, the transfer of ownership may occur at any time after the filing or approval of the original permanent labor certification with DOL.
G. Portability on Successor-In-Interest Filing Requirements
The American Competitiveness in the 21st Century Act (AC21) allows for certain petitions to remain valid even if the beneficiary is no longer seeking to adjust status based on employment with the petitioner that originally filed the petition on that beneficiary’s behalf.
In cases where a beneficiary is eligible for portability based on AC21, a successor entity need not file a new petition on the beneficiary’s behalf, provided that all the AC21 requirements have been met. For instance, the beneficiary would have to show for purposes of adjustment that the successor job opportunity is the “same or similar” as the job opportunity on the permanent labor certification, according to applicable guidance on AC21.
H. Relevance to Permanent Labor Certification Application
Successor-in-interest determinations are principally relevant to the continuing validity of a permanent labor certification. Successor-in-interest petitions are not required to reaffirm the validity of the initial petition requesting visa preference categories that do not require a permanent labor certification, such as the employment-based 1st preference persons of extraordinary ability and certain employment-based 2nd preference national interest waiver cases.
A new or successor employer seeking to classify the beneficiary as an employment-based 1st preference multi-national executive or manager or employment-based 1st preference outstanding professor or researcher must file a new petition and establish the beneficiary’s eligibility under the requested category’s specific eligibility requirements.
If you or your employer want to learn more about this topic or about our legal services for the preparation and the filing successor in interest amendment petition, legal documentation, etc. do contact us at (+1) 202 600 7742, email us at info@adhikarilaw.com or schedule a meeting: https://calendly.com/adhikarilaw