The Successor-in-Interest (SII) doctrine in employment-based immigration allows a new employer to continue the green card sponsorship process after a corporate restructuring, such as a merger, acquisition, or business reorganization. The March 2025 USCIS Policy Update adds and refines to the prior guidance, incorporating past memoranda, such as the August 6, 2009 Neufeld Memo.
This article provides details as to how SII applies at different stages of the PERM labor certification and I-140 process, covering:
- Before Filing PERM
- After Filing PERM but Before Approval
- After PERM is Approved
Additionally, this write-up highlights key USCIS determinations, documentary requirements, and specific legal considerations related to successor-in-interest petitions.
1. Before Filing PERM: Can a Successor Employer Continue the Process?
Key Issue:
If a company undergoes a merger or acquisition before filing PERM, can the new company continue with the process?
- PERM labor certification is employer-specific, meaning that a successor company cannot use the predecessor’s recruitment efforts or prevailing wage determination (PWD) without providing clear documentation of successorship.
- DOL regulations do not explicitly address successor-in-interest situations before PERM filing, but DOL FAQ Round 10 (2007) provides a framework.
DOL FAQ Round 10 (2007) – Key Takeaways:
- If Company A completes recruitment but is acquired by Company B before filing PERM, the name used in the recruitment must match the employer’s legal name at the time of recruitment.
- The ETA Form 9089 (PERM application) must be filed in the successor employer’s name.
- If there is a discrepancy between the employer’s name in the recruitment and on the ETA Form 9089, the employer must be prepared to prove the successor-in-interest relationship if audited.
Options for a Successor Employer Before Filing PERM
- Attempt to Continue with the Existing Recruitment:
- The successor company can file PERM using the original recruitment, but must:
- Clearly disclose the merger or acquisition on ETA Form 9089.
- Include supporting documentation, such as:
- Corporate merger/acquisition agreements.
- Evidence that the new employer assumed all rights and liabilities related to the job opportunity.
- Risk: The case may be subjected to audit or denial if DOL is not satisfied with the successorship claim.
- The successor company can file PERM using the original recruitment, but must:
- Restart the PERM Process:
- The safer approach is for Company B to:
- Obtain a new prevailing wage determination in its name.
- Reconduct the entire recruitment process under the new legal entity.
- File a new ETA Form 9089 under Company B’s name.
- Advantage: Avoids potential audits and denials.
- The safer approach is for Company B to:
2. After PERM is Filed but Before Approval: Can a Successor Employer Continue the Process?
- DOL allows a pending PERM to continue if the successor employer can demonstrate a valid successor-in-interest relationship.
- The successor must submit documentary evidence of the transfer of ownership and job continuity.
3. After PERM is Approved
1. Successor Requests to Use a Predecessor’s Approved PERM Labor Certification
- When a company undergoes a merger, acquisition, or restructuring, it may continue the immigration sponsorship of employees as a successor-in-interest (SII) to the previous employer.
- A successor employer may file an I-140 petition using the predecessor’s approved PERM if the following documents are provided:
- Proof of ownership transfer.
- Documentation of organizational structures before and after the merger.
- Proof that the beneficiary meets the job qualifications.
- The original approved PERM.
- Financial documents proving ability to pay the wage by both predecessor and successor.
2. Situations That Do Not Require a New or Amended I-140 Petition
- If the company name changes but ownership structure remains the same.
- If the job relocates within the same metropolitan statistical area mentioned in PERM.
- If a Form I-485 (Adjustment of Status) or immigrant visa application is filed, the beneficiary may need to document that the employer remains the same.
3. Filing an Amended I-140 After a Change in Employer
- If a qualifying successor-in-interest relationship exists, an amended I-140 petition must be filed.
- Required documents include:
- Predecessor’s I-797 approval notice.
- Financial ability to pay documentation from both companies.
- Evidence of ownership transfer and changes in the organizational structure.
4. Consolidated Processing for Multiple Successor Petitions
- If multiple successor-in-interest petitions arise from the same corporate change, USCIS may process them together.
- Employers may request consolidated processing through the USCIS Contact Center or Premium Processing mailbox.
5. Successor-in-Interest Legal Precedents
- Matter of Dial Auto Repair Shop, Inc. (1986):
- The employer failed to demonstrate a valid successor relationship and thus lost the ability to use the original PERM labor certification.
- This case established that a successor must assume essential rights and obligations of the predecessor.
6. Three-Factor Successor-in-Interest Test
For USCIS to approve an SII petition, the following three factors must be met:
- Same Job Opportunity: The new employer must offer the same job with no material changes to wage, location, or job description.
- Successor’s Burden of Proof:
- The successor must prove its ability to pay the beneficiary’s wages.
- The predecessor must have had the financial ability to pay from the PERM filing date to the merger/acquisition date.
- Ownership Transfer:
- There must be clear evidence that the business ownership changed while maintaining operational continuity.
- The successor must take over essential assets, interests, and obligations related to the PERM labor certification.
7. Examples of Valid vs. Invalid Successor-in-Interest Claims
- Valid SII Case: A software company buys an entire IT department from another company, keeping the same employees and job duties. This is a valid SII case because the entire IT department was bought, meaning the business unit that includes the job was transferred in whole. The same employees continue to work, suggesting there is continuity in employment. The job duties remain unchanged, so the original job offer (described in the PERM and I-140) is still valid and has not materially changed.
- Invalid SII Case: A company only buys intellectual property (e.g., software patents) but does not assume employment obligations.
Extract from the USCIS Memo “Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions; AFM Update AD09-37” dated August 6, 2009:
“If the successor has acquired all or a portion of a business, the petition must still demonstrate that the successor is eligible to file the petition and that the job opportunity remains valid.
If the successor has acquired only a portion of the predecessor’s business, the petition must demonstrate that the portion of the business that was acquired is the portion that filed the labor certification and that the job opportunity described in the labor certification continues to exist in the successor entity.”
“If a distinct business unit or division of a company is sold to a new owner, and that unit includes the job described in the labor certification, then the new company may be eligible to file a successor-in-interest I-140 petition, provided the other requirements are met (including assumption of liabilities and identical job offer).”
✅ What does “assumption of liabilities” mean in this context?
It means that the successor company must legally take on the responsibilities and obligations that the original employer had under the labor certification and I-140 petition—specifically, the obligation to:
- Employ the beneficiary in the same job position described in the PERM.
- Pay the proffered wage listed in the PERM/I-140 once the beneficiary gets permanent residence.
- Stand in the shoes of the prior employer for all immigration-related purposes related to the petition.
It does not mean the successor must take on all liabilities of the predecessor company—just those tied to the job opportunity and immigration petition.
✅ Summary of Legal Principle:
If a distinct business unit (like an IT department) is sold or transferred in its entirety, and that unit includes the position described in the PERM, then the acquiring company can step into the shoes of the original petitioner as a valid successor-in-interest, assuming:
- The job opportunity remains valid and unchanged.
- The new company assumes the obligations and liabilities related to the labor certification.
8. USCIS Handling of Requests for Evidence (RFE) in Successor Cases
- If USCIS questions the successor-in-interest relationship, it may issue an RFE requesting additional proof.
- If the RFE response is insufficient, USCIS denies the petition.
9. Portability Under AC21 and Successor-in-Interest Cases
- Under AC21, if an I-485 application has been pending for 180+ days, the beneficiary may switch to a similar job with a different employer without needing a successor petition.
- If AC21 portability applies, the successor does not need to file an amended I-140.
10. USCIS Considerations for Permanent Labor Certification Validity
- Successor-in-interest only applies to employer-sponsored green card processes (PERM-based petitions).
- Non-PERM employment-based petitions (such as EB-1 Extraordinary Ability or National Interest Waiver cases) require a new petition under the new employer’s sponsorship.
Conclusion
Successor-in-interest cases require substantial documentation proving job continuity, financial ability to pay, and ownership transfer.
Companies acquiring only partial business units must ensure that the transferred unit includes the specific job listed in PERM to qualify for successor status.
AC21 portability provides an alternative for I-485 applicants to continue their green card process if they meet portability criteria.
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