Procedural Changes for Filing Certain I-140 Petitions
Posted Jun 01, 2007
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The USCIS issued new procedures on May 24, 2007 for filing I-140 petitions. These changes are the result of a recent U.S. Department of Labor (DOL) regulation that will become effective on July 16, 2007. This regulation was covered in our May 16, 2007 article, NewsFlash! LC Substitution Elimination Reg Effective July 16, 2007, available on MurthyDotCom. The title of the new regulation is: "Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity." The new procedures at the USCIS relate to the labor substitution request, as well as a new 180-day deadline for filing the I-140 following the approval of a labor certification.
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Reason for USCIS Changing Certain I-140 Petition Processes
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The DOL regulation eliminates the labor substitution process. This impacts the I-140 procedure, as most substitution requests are made through the USCIS at the I-140 stage of a case. Also, the DOL regulation limits the validity of an approved labor certification to 180 days, so that an I-140 petition must be filed within that time. Previously, labor certifications were valid indefinitely. Thus, the USCIS has to modify its procedures to accommodate the new deadlines.
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I-140 Substitutions Must be Filed / Received before July 16, 2007
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For those not familiar with the topic, labor substitution is a procedure by which the initial beneficiary of a labor certification is replaced by a new, substituted beneficiary. Put simply, it allows the employer to replace person A, named in the labor certification, with person B, if certain requirements are met. The DOL regulation eliminating this process becomes effective July 16, 2007.
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The USCIS will continue to accept I-140 petitions prior to the effective date of the regulation eliminating labor substitutions. They will reject any I-140 substitution requests that are filed on July 16, 2007 or after. (We note that July 16, 2007 is a Monday. The notice does not address weekend filings, but the USCIS is not open to receive filings on weekends. Therefore, substitution filings probably should be mailed so that they reach the USCIS on or before Friday, July 13, 2007.) These I-140s cannot utilize the premium processing service, as was explained in our May 22, 2007 MurthyBulletin article, NewsFlash! No Premium Processing for Substitution Cases, also available on MurthyDotCom.
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Substitution Must be Approved by July 16, 2007, if Pending with DOL
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While mostly made through the USCIS, there are a limited number of substitution requests that are made directly with the DOL. In the event that the DOL approves such a request prior to the effective date of the regulation, July 16, 2007, that labor certification will remain valid. A labor certification of this type would be subject to the same rules for expiration as all other labor certifications, as explained below.
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Labor Certification Expiration : 180-Day Limit
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The DOL regulation establishes a 180-day expiration date on labor certifications. This affects all labor certification cases for which an I-140 has not been filed before July 16, 2007. There are two categories of cases: those labor certifications approved before July 16, 2007 and those approved after July 16, 2007. As explained in our article on the DOL regulation, labor certifications that were approved before the effective date of the regulation will expire 180 days after the regulation becomes effective on July 16, 2007. Labor certifications that are approved after the regulation is effective will be valid for 180 days following approval. The USCIS will reject any I-140 filings made by employers after the labor certifications have "expired." In the event that they erroneously accept any such cases, they will deny the I-140 petition.
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Situations Allowing I-140 Petition Filings after 180 Days
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In all cases, it is necessary to meet the 180-day deadline for filing the I-140 petition after the labor certification approval. If this is not done, the labor certification will expire by operation of law and the employer can no longer use that approved labor certification. There are some cases for which it may be necessary to file more than one I-140 petition in a particular case. In such situations, if the first I-140 was filed within the 180-day limit, then the subsequent I-140/s petition/s could be filed even AFTER the 180 days have passed.
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Examples of such situations include amending an I-140 filing because there is a successor-in-interest situation (typically needed when there are corporate mergers / acquisitions) and a re-filing for the same beneficiary after a denial, revocation, or abandonment. In such instances, it is necessary to file the I-140 a second time. This second I-140 filing can be done even after the 180 days have elapsed, as long as the first I-140 filing was made within the 180-day deadline.