Successor-in-Interest is a commonly seen situation in I-140 (employment-based immigration) petitions where an employer was subsequently merged or purchased by another company in its entirety; and that company took over all ownership and liability of the original employer. The original employer may have obtained a labor certification for its employee. In this situation, the new company may still continue the green card petition for the employer by the theory of successor-in-interest.
What is Successor-In-Interest?
Successor-in-interest means that a new employer steps in the position of the original employer to continue the green card petition of its employees because the new employer assumes the entire ownership and liability of the original employer.
A successor employer must establish a successor-in-interest 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.
The USCIS discussed the successor-in-interest relationship in a previous memo which laid out three factors. Successor employers need to consider all three factors to determine whether there is a valid successor-in-interest relationship: The three factors are:
- The job offered by the successor employer must be the same as the job originally offered on the labor certification;
- The successor employer bears the burden of proof to establish eligibility in all aspects; 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 petitioning employer must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.
Which I-140 Petitions Can Apply Successor-in-Interest?
The successor-in-interest benefit 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.
Successor-in-interest can be applied in the following employment-based immigration visa category:
- E21, Advanced Degree Alien or Alien of Exceptional Ability, with Individual Labor Certification;
- E32, Professional Worker;
- E31, Skilled Worker; and
- EB3, Other Worker.
Successor-in-interest can not be applied in the following employment-based immigration visa category:
- E11, Alien of Extraordinary Ability;
- E12, Outstanding Professor or Researcher;
- E13, Multinational Manager or Executive;
- E21, National Interest Waiver; and
- E21 or "EB3", Schedule A, Group I or II
If the job title for the position with the successor company differs from the job title in the predecessor company’s labor certification, the case may or may not have adverse impact in a successor-in-interest employer situation.
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.
An alien beneficiary to retain the priority date established in a previously approved Form I-140 petition under Successor-In-Interest.
In general, the alien beneficiary in a successor-in-interest case may retain the priority date of the predecessor’s approved I-140 petition, if there is one. 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 there isn’t a successor-in-interest relationship. However, the new employer must test the labor market again through the labor certification process, obtain an approved labor certification by the Department of Labor and then file a new I-140 petition on behalf of the alien beneficiary. 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 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.
