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Bloggings on PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

November 10, 2008

Alien may substitute US Employer in PERM Case

While employers may not substitute aliens, in some situations aliens may substitute employers. The change would occur after the PERM case is approved. The new employer would file an I-140 petition and provide documentation why he believes he can be substituted for the original employer, whose name is on the approved PERM case.

We recently discussed this issue during an ILW.COM PERM Teleconference, and one of the speakers, Sofia Zneimer, capsulated her thoughts on this issue for presentation to this Blog.

Here is what Sofia had to say:

"As we discussed during the presentation, one of the changes that may affect the validity of the labor certification is the change in the employer.  This change may be a corporate restructuring, sale of stock, sale of assets, assignment of contract, or others.  To what extent a change would affect the validity of a labor certification is unsettled.  There are a few decisions, where the change in employer occurred while the labor certification was still pending.  For example, in Law Offices of Jean-Pierre Karnos, Balca 2003-INA-18, May 20, 2004, Mr. Karnos, a solo attorney applied for a labor certification on behalf of Mr. Espinoza.  Before the labor certification was approved, Mr. Karnos passed away.  After his death, another solo attorney, James G. Roche, asked that the labor certification be transferred in his name.  The Department of Labor questioned whether a job opportunity continued to exist in view of Mr. Karnosís death.  The CO determined that the job opportunity did not survive the death of Mr. Karnos.  Specifically, the CO found significant that Mr. Roche had not been the decedentís partner nor had a contract transferring the interest in the business to him.  BALCA disagreed with the CO, finding that the job opportunity continued to exist. BALCA analyzed the position, the duties, the area of intended employment, and the salary and found that since they are all the same, the job opportunity survived Mr. Karnosís death.

As this case involved a labor certification that was still pending with the DOL, it is questionable whether the USCIS will follow the same analysis, where the change has occurred after the labor certificationís approval.  The USCISís position is that a beneficiary cannot substitute petitioner, except if the petitioner is purchased, merges with another company, or is otherwise under new ownership. The successor-in-interest must submit proof of the change in ownership and of how the change in ownership occurred.  It also must show that it assumed all of the rights, duties, obligations, and assets of the original employer and continues to operate the same type of business as the original employer. See Matter of Dial Repair Shop, 19 I&N Dec. 481 (Comm. 1981)  

In this case, the substituted petitioner was operating the same type of business as its predecessor, at the same address,  and proposed to employ the beneficiary in the same position at the same pay. In that situation, the BIA ruled that the substituted petitioner must show that it is the successor-in-interest of its predecessor through the tests described above. Since the USCIS is bound by decisions of the BIA, and not BALCA, in cases where the labor certification is approved, the new petitioner should try to prove that it is a successor in interest and cannot rely on the BALCA decisions."

Sofia presents the traditional, conservative view, i.e., that the substitution of employer should include evidence that the new employer assumed all the rights, duties, obligations, and assets of the original employer. This view is adopted by the DHS in its "Adjudicator's Field Manual". However, in additional to this view, something less than full succession of interest to liabilities and assets may be presented to DHS.

Since a substitution of employer permits the original priority date to be retained, applications can file an I-140 petition with a substitution of employer, along with an application for adjustment of status, and, if necessary, file a new PERM case as well in the name of the new employer. The new PERM case would be used as a back-up, in case the original PERM case and substitution were rejected.

he issue of who owns an approved labor certification is unsettled and how an approved labor certification may be transferred from one employer to another is unsettled.This is clearly an area of law which requires creative lawyering.