(5) Successor in Interest.
On March 17, 1992, the Agency entered into an agreement with the DOL that the Agency (now USCIS) will make determinations regarding successor in interest on I-140s when a labor certification has already been issued. Successor in interest occurs when the prospective employer of an alien (and the entity that filed the certified labor certification application form) has undergone a change in ownership, such as an acquisition or merger, or some other form of change such as corporate restructuring or merger with another business entity, and the new or merged, or restructured entity assumes substantially all of the rights, duties, obligations, and assets of the original entity. The petitioner must submit evidence of the change in ownership, the restructuring of the organization, or merger (usually by the submission of a contract or agreement). The petitioner must also submit evidence that the predecessor company had the ability to pay the wage at the time the application for labor certification was filed and, of course, that the successor company continues to have that ability.
Some corporate changes that occur may not involve a successor in interest. For example, a mere change in a Company’s name or physical location without other organizational changes might not require the filing of a new or amended petition. However, when the physical location of proposed employment appears to have moved beyond the metropolitan statistical area (MSA) of the employment location specified on the labor certification application, if necessary, you may request advice from the Employment and Training Administration regarding the application of the definition of "area of intended employment” for purposes of continued validity of an approved labor certification.
The submission of a new original labor certification in support of the Form I-140 petition is required when any of the following conditions exist:
(a) The petitioner has not established that it is a successor in interest;
(b) The predecessor company did not have the ability to pay the proffered wage as of the time of filing the labor certification application;
(c) The successor company does not have the ability to pay the proffered wage; or
(d) The labor certification is not valid for the new physical location of the alien beneficiary’s proposed employment or there has been any other material change in the job opportunity covered by the original labor certification.
Adjudicators should issue an RFE to the petitioner if the petitioner has failed to satisfy in its petition that it is in fact a qualified successor in interest. The RFE should explain why the labor certification that was originally provided in support of the petition is not valid for the proffered position, based on one or more of the reasons outlined above. If the petitioner does not provide a new original labor certification or sufficient evidence to overcome the concerns outlined in the RFE, then the petition should be denied.
