PERM and I-140 Portability in Adjustment Cases

Employees in the permanent residence process face complex problems when there are changes in worksite location, promotions, demotions, changes in employer, layoffs and other events.  The consequences of these changes depend mostly on during which stage of the process the event or change occurs.  The employment based permanent residence process generally proceeds along the following steps:

1. Employer conducts recruitment
2. Employer files PERM labor certification application with Department of Labor
3. Department of Labor approves PERM application
4. Employer files I-140 petition with USCIS
5. USCIS approves I-140 petition
6. Employee files I-485 application to adjust status
7. USCIS approves I-485 application to adjust status

There are also one or more portability benefits that attach based on the stage of processing:

1. No portability
2. H-1B extensions for one year beyond six year maximum
3. H-1B extensions for three years beyond six year maximum
4. Employee may change employers and retain priority date, but new employer must file new labor certification
5. Employee may change employers, retain priority date and new employer need not file any application or petition

H-1B Extensions Based on PERM, or I-140 Status

Seventh-year H-1B extensions of status are authorized under the American Competitiveness and Workforce Improvement Act §106(a) in one year increments where a labor certification has been pending for one year or longer, and an I-140 petition has not yet been approved.  Where the I-140 petition has been approved and it is not possible for the beneficiary to adjust status because her priority date is not yet current, ACWIA allows a three year H-1B extension beyond the six year maximum stay.  This benefit is available regardless of whether the I-140 petition was filed by a different employer than the one filing the H-1B petition.  Interim Guidance for Processing Form I-140, William R. Yates, 05/12/2005.

In cases where the labor certification has not yet been pending for one year and there is no approved I-140 petition, the employee is not eligible for H-1B status beyond the six year maximum period of stay.

Changing Employers During the Labor Certification Stage

Unfortunately, employees who change employers during the labor certification process are not eligible to retain any benefits of the process.  Such employees may change employers, but to pursue permanent residence the new employer must file a new labor certification and may not use the priority date of the earlier labor certification.  The only exception is in some cases of mergers and acquisitions.  A new employer may use neither the recruitment, nor an approved labor certification of an earlier employer unless that earlier employer reached later stages of the process.

The labor certification process consists of the employer placing ads to attract qualified US workers and then preparing a report of the results of that recruitment campaign and filing a labor certification application with the US Department of Labor.  Throughout this process and up through the next step where the employer files an I-140 petition, the employee and any new employer may not use any part of the earlier accomplished tasks in a new permanent residence process.  The new employer must conduct a new recruitment campaign and file a new labor certification.

Mergers and Acquisitions

When a company undergoes a merger, or acquision during the labor certification process and there is no change to the worksite location, job title, job description, or salary, the new acquiring company may use the underlying labor certification.  If the labor certification has not yet been approved, the acquiring company may generally use it.  Where the I-140 petition has been approved, the acquiring company must file a new I-140 petition, but may use the underlying approved labor certification filed by the acquired company.

The law allows a worker with an approved labor certification and I-140 petition to continue to use the labor certification where the employee moves to a new employer that is a “successor” to the old company that filed the labor certification.  USCIS considers an entity to be a successor in interest when it has taken over all of the obligations, liabilities, rights, and assets of the original business and continues to operate the same business operated by the original business.  Thus, where the original petitioning employer in a permanent residence case filed for bankruptcy, the Administrative Appeals Unit (AAU) denied successor in interest status to the acquiring "successor" employer.  The AAU reasoned that because a bankruptcy proceeding was pending, the new petitioner could not have assumed all the duties and obligations of the original employer and, therefore, no true successor in interest could exist.  But when a company satisfies the successor in interest rules, USCIS will allow the new successor company to pursue an immigrant petition based on the labor certification filed by the original corporation.  Matter of [name not provided], A29 916 472 (AAU Feb. 5, 1993 (SSC) (MIA).

Successor in interest cases generally do require the new successor company to file a separate I-140 petition for the worker and the prevailing wage requirements and all aspects of the employment must be exactly the same as listed on the labor certification application, rather than the easier “same or substantially similar” requirement for I-140 portability.

Approved I-140 and I-485 Not Pending 180 Days

Under 8 CFR 204.5(e), a foreign national is eligible to use the priority date from an earlier approved I-140 petition for a new I-140 petition filed by a different employer based on a different labor certification, or no labor certification at all.  USCIS confirmed that there is no restriction in using a priority date from a first, second, or third preference category petition in a new first, second, or third category petition.  That is to say that a foreign national can use a past third preference category I-140 priority date for a new I-140 petition in the second, or first preference categories,, or any other combination.  So while the new employer may have to file a new labor certification and I-140 petition, in many cases the employee can keep his place in queue.  Why is this important?  For some foreign nationals, the queue for a permanent visa for professional jobs is almost ten years.  A labor certification approved five or six years ago by an earlier employer is very useful in cutting years off of the foreign worker's wait after a new employer files a new labor certification.

USCIS addressed the question of a foreign worker using a priority date from one preference category for a later I-140 petition seeking classification in a different preference category at the CSC-AILA Liaison Meeting February 25, 1999 at the California Service Center (Minutes prepared by the CSC-AILA Liaison Committee, Cynthia J. Lange, Chair Co-Chairs: Angeli K. Cheng, Nancy-Jo Merritt, Ruth K. Oh, and Bernard P. Wolfsdorf):

Question: Under 8 CFR § 204.5(e), a foreign national is eligible to use an earlier priority date from a previously approved immigrant visa petition under the first-preference, second-preference, and third-preference employment-based categories. Are there any restrictions regarding use of a priority date from one category to another? (For example, if a third-preference immigrant visa petition is approved, can the priority date be used for a later-filed first-preference immigrant visa petition?)

Answer: There is no restriction on the use of a priority date from a third preference immigrant visa petition to a first preference immigrant visa petition.  The use of a priority date from a first, second, or third preference category may be used on subsequent filings (regardless of first, second, or third preference) provided the original petition was not denied or revoked.  In addition, retention of old third and sixth preference petition (petition filed before October 1, 1991) priority dates may only be allowed if the beneficiary applies for an adjustment of status or immigrant visa within two years of the date of visa availability.

Note, however, that if the previous employer withdraws the earlier I-140 petition at any time up until the employee's I-485 application has been pending for 180 days, the priority date is likely no longer valid.  (See the discussion of Mawalla v. Chertoff below).  Becasue of the long queue for third preference category workers, it seems that the only safe way to use the underlying I-140 petition to retain the earlier priority date is with the previous employer's cooperation.

Portability When I-485 Pending 180 Days or Longer

Where the labor certification is approved, the I-140 petition is approved and the I-485 application has been pending for 180 days or longer, there is nothing that the previous employer can do to stop the new employer from using the underlying labor certification and I-140 approvals.  At this point, the foreign worker retains his right to the labor certification and I-140 petition and the new employer need not file either.  The new employer need only explain how the new job is "the same, or substantially similar" to the job described in the labor certification application.  The new job does not need to be in the same city, the same state, or at the same salary as the job listed in the underlying labor certification so long as the new job is the same, or substantially similar to the old job.  USCIS discusses these issues in detailed in the I-140 Memo from William R. Yates, August 4, 2003.  You can read it here: Continuing Validity of Form I-140, Memo from USCIS William R. Yates, August 4, 2003.  More recently USCIS issued a FAQ on July 23, 2007 discussing three year H-1B extensions for workers with an approved I-140 petition.  You can read the July 23, 2007 USCIS FAQ here.

Before the I-485 application to adjust status has been pending for 180 days, the earlier employer may withdraw the approved I-140 petition.  If the employer does so, the employee may not use the I-140 petition as the basis for an I-485 application and if the employee has a pending I-485 application, USCIS will almost certainly deny it.

The US District Court for the District of Columbia explored this issue in Mawalla v. Chertoff, 468 F.Supp.2d 177 (Dist. Ct. DC 2007).  In Mawalla, the court held that a foreign worker was not eligible for portability where his I-485 application to adjust status had been pending for 141 days at the time the earlier employer withdrew the I-140 petition.  The court noted that the statute clearly requires that applications are pending 180 days before a right to portability arises.  Interestingly, the court also determined that it had jurisdiction to review the issue of whether the employee was eligibile to adjust status in a case involving the portability provision at INA § 204(j), 8 USC § 1154(j).

On May 15, 2002, Intelsat Global Service Corporation filed an I-140 petition for the foreign worker and USCIS approved it on October 31, 2002. On April 20, 2004, the worker filed his I-485 application to adjust status.  On September 17, 2004, 141 days later, USCIS received a letter from Intelsat notifying it that it no longer employed the worker and also requesting to withdraw the I-140 petition.  In March 2005 USCIS notified Intelsat that it revoked the I-140 approval as of the date of initial approval as provided in 8 CFR §205.1(a)(3)(iii)(C).  The same day USCIS sent a notice of intent to deny the foreign worker's I-485 application because there was no longer a visa immediately available to him.  The foreign worker requested that his application be approved and included an offer of employment by a new company for the same position of testing engineer.  USCIS denied the I-485 application because it had been pending for less than 180 days when Intelsat requested to withdraw it.

The court rejected the government's contention that the petition was retroactively revoked as of the date of the initial approval for the purpose of computing the 180 days under the portability provision.  The court observed that if correct, this position would render AC21 ineffective.  The court stated that such a reading was contrary to Congress' intent in passing the AC21 which it did to give aliens with approved I-140s the flexibility to change jobs if USCIS takes more than 180 days to process their applications for adjustment of status.  The court referred to USCIS' own policy memorandum, which states that, "if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved I-140 shall remain valid under the provisions of AC21."

Potential Liability for Employers Who Withdraw I-140 Petitions Without Reason

Even in at-will employment states, employers have a duty not to take certain types of action against current or past employees without good reason.  Several civil employment law cases litigated in the state and federal courts indicate that employers may face liability for breach of contract, and even fraud for taking certain immigration-related action against employees without good reason.  Employers, for example, are required to inform USCIS upon an H-1B worker's termination of employment.  8 CFR 214.2(h)(11).  But the employer is not required to notify USCIS upon the termination of employment of an I-140 beneficiary (the H-1B withdrawal notice is sent to a different address and references a different case number than an I-140 withdrawal request).  If an employer requests that USCIS withdraw an I-140 petition for a worker simply to punish him, the employer risks an employment suit in state, or federal court.  Suits like this can be unpleasant because they raise the possibility of additional investigation by Department of Labor, US Citizenship and Immigration Services, and Department of Homeland Security.