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A Form I-140 Withdrawal Request
Form I-140 Petition that is pending or was approved at the TSC
USCIS Texas Service Center
Form I-140 Petition that was approved at the Vermont Service Center (VSC)
An AC21 106(c) Portability Request
Form I-485 Application that is pending at the TSC
A Form I-140 Withdrawal Request
Form I-140 Petition that is pending or was approved at the NSC
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Form I-140 Petition that was approved at the California Service Center
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Form I-485 Application that is pending at the NSC
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Q #11. How can a successor employer establish a successor-in-interest (SII) relationship with a predecessor employer in order to use that employer's approved labor certification when filing an I-140 petition on behalf of the alien beneficiary named on the labor certification?
A. On August 6, 2009, USCIS issued a memorandum, entitled "Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field Manual ("AFM") Update to Chapter 22.2(b)(5)" which amended the Adjudicator's Field Manual guidance on factors for making successor-in-interest (SII) determinations in the adjudication of Form I-140, Immigrant Petition for Alien Worker. This memorandum also superseded all previously issued policy guidance on SII relationship determinations for Form I-140 purposes. This updated guidance is intended to allow flexibility in the adjudication of I-140 petitions that present novel, yet substantiated and legitimate SII scenarios.
Per the memo, the following factors noted below will determine whether a valid SII exists:
Three Successor-In-Interest Factors
- The job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification;
- The successor bears the burden of proof to establish eligibility in all respects, including the provision of required evidence from the predecessor entity, such as evidence of the predecessor's ability to pay the proffered wage, as of the date of filing of the labor certification with DOL, and;
- For a valid successor-in-interest relationship to exist between the successor and the predecessor that filed the labor certification, the petitioner must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.
Question #12. To which I-140 visa classifications does the SII guidance apply?
A. The SII guidance only applies to I-140 visa classifications that require a job offer, do not have classification-specific eligibility requirements for petitioners, and must be supported by a DOL-approved individual labor certification. Note: The SII guidance does not apply in cases where the Form I-140 petition is the basis for a portability claim under INA 204(j), as no new successor Form I-140 petition is required as part of the INA 204(j) determination.
The following table outlines which visa classifications that the SII guidance applies to.
|Class/Subcategory||Does SII Guidance Apply?||If Not, Why?|
|E11, Alien of Extraordinary Ability||No||The E11 visa classification does not require a job offer.|
|E12, Outstanding Professor or Researcher||No||The E12 visa classification has classification-specific eligibility requirements for petitioners, i.e. the petitioning employer must be shown to be an institution of higher learning or a private research firm that employs at least 3 full-time researchers. [See 8 CFR 204.5(i).] Also, no individual labor certification is required.|
|E13, Multinational Manager or Executive||No||The E13 visa classification has classification-specific eligibility requirements for petitioners, i.e. the entity must be "multi-national, and have a qualifying relationship with the foreign entity which employed the alien abroad. [See 8 CFR 204.5(j).] Also, no individual labor certification is required.|
|E21, Advanced Degree Alien or Alien of Exceptional Ability, with Individual Labor Certification||Yes||N/A|
|E21, NIW||No||The E21 - NIW visa classification does not require a job offer nor a labor certification.|
|E21 or "EB3", Schedule A, Group I or II||No||The Schedule A classification subcategories have specific requirements for the job offered by the petitioner which must occur prior to the filing of each petition with USCIS. [See 20 CFR 656.]|
|E31, Skilled Worker||Yes||N/A|
|EW3, Other Worker||Yes||N/A|
Q. #13. Does the SII guidance impact the ability of an alien beneficiary to retain the priority date established in a previously approved Form I-140 petition under 8 CFR 204.5(e)?
A. Generally, the alien beneficiary in an SII case may retain the priority date of the predecessor's approved Form I-140 petition, if any. Also it is important to note that an alien beneficiary of an approved petition may be able to retain the priority date from the previously approved petition even if an SII relationship is not established by a company as result of an acquisition, merger, etc. However, the resultant company must test the labor market anew through the labor certification process, obtain a DOL-approved labor certification and then file a new Form I-140 petition on the alien beneficiary's behalf. A copy of the approval notice for the previously filed petition, or an annotation on the new petition noting the receipt number of the previously filed petition should be provided if an alien beneficiary seeks to retain the priority date of the prior I-140 petition.
Generally, an alien beneficiary may also retain the priority date established by an approved E12 or E13 petition for subsequent petitions filed in his or her behalf by a new employer in the E12 or E13 categories.
Q #14. Is the SII analysis adversely impacted if the job title for the position with the successor company differs from the job title noted in the predecessor company's labor certification?
A. When determining whether the job opportunity is the same as the job opportunity originally offered on the labor certification, adjudicators will examine the job duties of the position to determine if the job is still the same. Changes in job title, and other ancillary changes such as a change in computer software used in the job are not in and of themselves disallowed. Further, changes in the wage offered due to wage increases that have occurred over the passage of time do not impact the determination as to whether the job is the same.
Q #15. How can a successor employer request consolidated processing of SII cases as outlined in the SII memo?
A. A request for consolidated processing of SII cases should be directed to the National Customer Service Center (NCSC). The NCSC will forward the request to the appropriate service center(s) for a decision, which should be received within 30 days of the request. The center director(s) will determine if the consolidated processing request can be granted based upon whether such a request would adversely impact the service center's ability to timely address other pressing work priorities.