The USCIS recently issued a Memorandum amending its Adjudicator’s Field Manual to provide new guidance on factors for making successor-in-interest determinations in the adjudication of Immigrant Petitions for Alien Worker (Form I-140).
Prior to the issuance of this guidance, the USCIS Texas Service Center recently indicated that a successor company would only be considered to a successor-in-interest if the successor company assumes all of the rights, duties, obligations and assets of the original employer and continues to operate the same business as the original employer.
The USCIS stated that it is issuing the updated field guidance to acknowledge the fact that business practices have changed, especially of the areas of acquisitions, mergers and transfers of assets and liabilities between entities. The USCIS stated that for all new and currently pending Forms I-140 petitions, the following three factors should be considered in determining whether a valid successor-in-interest relationship exists:
- The job opportunity offered by the successor must be the same as the job opportunity originally offered on a labor certification;
- The successor bears the burden of proof to establish eligibility of all respects, such as evidence of the predecessor’s ability to pay the offered wage as of the date of the filing of the labor certification with the U.S. Department of Labor (DOL).
- For a valid successor-in-interest relationship to exist between the successor and predecessor that filed the labor certification, the petitioner must describe and document the transfer and assumption of the ownership of the predecessor by the successor.
The USCIS reminded its officers that their can be instances were a valid successor relationship exist even if the successor entity has not assumed all the assets, rights, obligations and liabilities of its predecessor entity.
The USCIS stated that this new guidance is not applicable for Form I-140 petitions that do not require a labor certification, including EB-1 multi-national managers or executives. These employers must file a new Form I- 140 to establish the employee’s continuing eligibility for the classification.
The USCIS also reaffirmed that a successor entity need not file a new petition on an employee’s behalf if the employee qualifies for the “green card” portability provisions contained in the American Competitiveness in the Twenty-First Century Act (AC21).