This article discussed USCIS I-140 Successor in Interest Guidelines for PERM Labor Certification.
What is an I-140 Successor in Interest?
A Successor in Interest (SII) allows a new U.S. employer (the successor) who is not the employer stated on the approved labor certification application to assume an approved PERM Labor Certification from a previous employer (the predecessor). This occurs when a business undergoes a corporate restructuring—such as a merger, acquisition, or reorganization—allowing the new entity to file an immigrant visa petition (Form I-140) on behalf of the foreign worker.
The Successor in Interest analysis primarily ensures the continuous validity of the underlying individual Department of Labor (DOL) labor certification.
Eligible vs. Ineligible Visa Classifications
The SII framework only applies to job-offer-based I-140 classifications that require an individual DOL approved labor certification or specific employer-sponsored categories.
| Eligible Classifications | Ineligible Classifications |
| • EB-2 / EB-3 (PERM Labor Certification) • EB-1B (Outstanding Professor/Researcher) • EB-1C (Multinational Manager/Executive) | • EB-1A (Extraordinary Ability) • National Interest Waiver (NIW) • Schedule A (Group I or II) |
The 3 Key Factors for Successor in Interest Evaluation
To establish a valid Successor in Interest relationship, USCIS evaluates three criteria. The transfer of ownership may happen at any point after the original PERM Labor Certification is filed.
1. The Same Job Position
The job opportunity offered by the successor must be identical to the one approved on the PERM Labor Certification.
- The terms, conditions, job description, and minimum requirements must match those stated for the original permanent position in the labor certification.
- Exception: An increase in salary or rate of pay due to the passage of time does not disqualify the SII claim.
2. Employer Eligibility & Ability to Pay
The successor bears the burden of proof to establish visa eligibility as of the priority date. This requires demonstrating a continuous Ability to Pay the proffered wage:
- Predecessor’s Burden: Must prove the ability to pay from the initial PERM filing date up until the date of transfer of ownership.
- Successor’s Burden: Must prove the definition of a legal employer and demonstrate the ability to pay from the date of ownership transfer through to the beneficiary’s immigrant visa issuance or Adjustment of Status (Form I-485).
3. Documenting the Transfer of Rights, Obligations, and Ownership
The successor must fully document the legal transfer of the business entity. USCIS explicitly recognizes modern business flexibility, meaning the successor does not need to assume all liabilities (for example, unrelated torts or pending litigation) as businesses may choose not to assume certain assets or liabilities, as long as the transaction is legitimate.
If a business can establish these three factors, an officer may find a valid successor-in-interest relationship even in situations where a successor does not wholly assume a predecessor entity’s rights, duties, and obligations.
⚠️ Important Note: A valid Successor in Interest relationship cannot exist based purely on service agreements, joint ventures, or contractual partnerships without an actual transfer of ownership.
Required Evidence Checklist
To prove a legitimate transfer of ownership, petitioners should submit documents such as:
- Contracts of sale or asset purchase agreements
- Mortgage closing statements or property transfers
- Securities and Exchange Commission (SEC) Form 10-K
- Audited financial statements for both entities covering the transfer year
- Transfer documentation for business licenses and real property
- Copies of financial instruments used to execute the transaction
- Media reports or newspaper articles announcing the merger/acquisition
USCIS Procedural Guidance: RFE vs. Amended I-140
If new employer (succesor) files form I-140 based on an approved PERM labor certification filed by original employer amd fails to demonstrate a qualified successor in interest relationship then USCIS will issue a request for further evidence.
If, however, the approved labor certification application has already been submitted to USCIS with an I140 petition filed by the predecessor employer then an amended I-140 petition must be filed. A petitioner may request consolidation of multiple successor in interest petitions at one USCIS Service Center.
Frequently Asked Questions
Does a merger cancel an approved PERM Labor Certification?
No. An approved PERM remains valid if the acquiring company qualifies as a Successor in Interest by keeping the job requirements identical and proving the continuous ability to pay the proffered wage.
Can a successor change the job duties listed on the original I-140?
No. The job description, requirements, and duties must remain the same as stated on the DOL labor certification. Only wage increases due to time elapsed are permitted.
Is an entirely new I-140 required after a company acquisition?
If the original I-140 was already filed by the predecessor, the successor must file an amended I-140 petition accompanied by Successor in Interest evidence to maintain the original priority date.
Why Partner with Malescu Law?
Don’t let a business sale or merger disrupt your workforce. Contact our immigration team today to schedule a comprehensive consultation and ensure your I-140 petition and PERM transfers remain valid.
Here is why corporate employers and legal teams trust us to navigate their I-140 and PERM transfers:
- Corporate Immigration Expertise: We specialize in the intersection of corporate transactions and immigration law, ensuring your mergers, acquisitions, or reorganizations preserve your employees’ priority dates.
- Strategic Risk Mitigation: From evaluating complex “Ability to Pay” data across predecessor and successor entities to auditing job descriptions, we build robust, audit-proof petitions designed to prevent costly Requests for Evidence (RFEs).
- Tailored, High-Touch Service: We don’t believe in a one-size-fits-all approach. Our firm provides customized guidance for novel corporate scenarios to ensure your business continuity.
- Seamless Large-Scale Transitions: If your restructuring involves multiple foreign nationals, we have the operational capacity to manage and consolidate high-volume Successor in Interest petitions efficiently.
We serve companies and individuals across all 50 states, the District of Columbia and Puerto Rico.
Contact us or schedule a consultation.
Malescu Law P.A. – Business & Immigration Lawyers
