Validity of Petition After Business Is Sold

If a company that filed an I-140 immigrant petition for an alien worker is bought out, merged or had a significant change in ownership, does the petition remain valid?

Under the old rule, it remained valid if the successor company had assumed all of the rights, duties, obligations and assets of the original company and it continued to operate the same type of business. In addition, the new employer had to prove that it could pay the wage specified on the labor certification.

But the rule has now been modified in light of changing business practices. In a newly released memo, the United States Citizenship and Immigration Services (USCIS) now recognizes the need to be flexible in the adjudication of I-140 petitions.

The successor company is no longer required to assume all of the predecessor’s rights, duties and obligations as long as it can establish three factors.

Under the first factor, the job opportunity offered by the successor must be the same as the one offered on the labor certification.

The job offered must remain unchanged as to the rate of pay, job description and job requirement.

The job must also remain valid and available until the issuance of an immigrant visa abroad or the approval of the adjustment of status. If after the business is acquired, the operations temporarily cease, the original job is considered as no longer valid.

As to the second factor, the successor must demonstrate that all the requirements for the petition approval have been met from the date of the filing of the labor certification until the transfer of the ownership of the business.

The successor must meet the definition of employer and the predecessor must continue to have the ability to pay the proffered wage until its acquisition. If it becomes insolvent at anytime before the acquisition, the second factor is not met.

The third factor is the documentation of the transfer and assumption of the predecessor by the successor. Evidence may consist of the contract of sale, mortgage closing statements, audited financial statements of the old as well as the new owner, copies of financial instruments, documentation of the transfer of real property and business license and news articles about the corporate restructuring.

If the above three (3) factors are not established, there is no valid successor-in-interest relationship and therefore the labor certification and I-140 petition are no longer valid.

They are no longer valid also if the location of the beneficiary’s proposed employment is in a geographic area different from that in the original labor certification or if there has been a material change in the location of the job opportunity.

But a legal change in the employer’s name or a change of location within the original geographic area will not affect the validity of the labor certification and I-140 petition.