Successor-in-Interest for PERM Labor Certifications

The PERM labor certification process can be lengthy for employers and employees. During the wait, a company pursuing a labor certification for a prospective employee may be acquired, merge, change corporate structure, or change ownership. In such an event, the new entity may be able to qualify as a successor-in-interest of its predecessor and assume the use of the predecessor’s approved labor certifications.

Background on Successor-in-Interest

A successor-in-interest is a company that merges with or acquires its predecessor, such that it assumes at least certain rights, duties, obligations, and liabilities of the predecessor entity. Determining whether a particular entity and position being offered qualifies as a successor may be case-specific and requires a look at several factors. Simply acquiring the location or name of the predecessor likely does not create a successor-in-interest relationship.

Assuming a Predecessor’s Approved Labor Certification

If a company successfully demonstrates that it is the successor-in-interest, the successor can assume the use of approved labor certifications filed by the predecessor. If the predecessor already filed an I-140 petition, the successor may need to file a new or amended I-140 petition.

Factors to Consider for the Successor to Use the Pending or Approved PERM

To determine whether a successor-in-interest can use the PERM labor certification filed by the predecessor, the U.S. Citizenship and Immigration Services (USCIS) will look at three factors. First, the USCIS will determine whether the job opportunity being offered is the same as the job opportunity originally offered. Second, the successor-in-interest must demonstrate that the successor met all the elements of eligibility as of the priority date, including the ability to pay the proffered salary. And third, the successor must provide evidence USCIS will verify that the successor, in fact, qualifies as a true successor-in-interest of the entity that filed the PERM.

Same Job Opportunity

The job opportunity offered by the successor must match the job opportunity listed in the permanent labor certification. If there are discrepancies between the original job opportunity and the new job opportunity, the USCIS will focus on changes that impact how the labor market should have been tested relative to the testing performed for the original position, and thus whether U.S. workers were given an opportunity to apply for the current position. The USCIS will primarily look at the rate of pay, location, job description, and job requirements of the new position. Standard salary increases made in the passage of time typically would not affect a successor-in-interest claim.

If at any time during the merger or acquisition the position becomes inactive, then the job opportunity ceases to exist and a new labor certification must be filed. For example, if the predecessor closes its office and ceases operations for a month while the new employer renovates the building, then the position ceases to exist and a successor-in-interest claim cannot be made.

Elements of Eligibility

The successor must establish that all eligibility requirements were met as of the labor certification filing date (i.e., the priority date). Notably, this includes demonstrating that the employer had the ability to pay the offered salary since the date of filing.

Transfer and Assumption of Ownership and Liabilities

The successor must provide documentary evidence fully describing its merger or transfer and assumption of ownership of the predecessor. The evidence must also show that the successor acquired the rights, obligations, and liabilities of the predecessor, and that the successor operates, carries on, and controls the same type of business as the predecessor. Such evidence can include legal agreements pertaining to the transfer, mortgage closing statements, SEC filings, or possibly newspaper articles or other media announcing the merger or acquisition.

Certain liabilities that are unrelated to the job opportunity do not need to be assumed by the successor. For example, the successor does not need to assume a workers compensation litigation between the predecessor and an employee unrelated to the offered position.

Transfers can occur across various organizational structures, including partnerships, LLCs, or corporations. Additionally, the successor does not need to acquire the predecessor’s entire operation. A successor-in-interest relationship can exist even if the successor acquires only a particular unit or division of the predecessor.

Conclusion

The PERM process can be long and costly for employers. If a successor company can successfully demonstrate that a successor-in-interest relationship exists, this can save the time and expense of filing a new labor certification for a qualified foreign worker. The Murthy Law Firm has years of relevant experience in representing entities during the process of a merger or acquisition and helping in handling the immigration related processes in an efficient and cost-effective manner.

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