December 24, 2007

Labor Certification Approvals Are Now Time Limited and Time Sensitive

On January 12, 2008, labor certification applications that were approved prior to July 16, 2007 will expire if not filed with an I-140 immigrant petition on or before this date. If certain steps are not taken, this shortened validity period may affect a company’s ability to provide H-1B extensions beyond the 6th year maximum allowed to its foreign national staff.

On July 16, 2007, the U.S. Department of Labor implemented new regulations that, among other things, created a 180-day validity period for all approved labor certification applications. Accordingly, for all labor certification applications approved on or after July 16, 2007, employers will be required to file their approved labor certification application with the I-140 immigrant petition within 180 days following the approval if they want to proceed with the case. In addition, labor certification applications that were approved prior to July 16, 2007 will expire by January 12, 2008 if not filed with an I-140 immigrant petition on or before that date.

The U.S. Citizenship and Immigration Services (“USCIS”) has issued a memorandum regarding the new regulations which defines a limited number of exceptions where they will accept I-140 immigrant petitions even though the labor certification application has passed the 180-day validity period. The USCIS will continue to accept amended or duplicate I-140 immigrant petitions that are filed with a copy of an expired labor certification, but only if the original approved labor certification application was timely filed during its validity period. Other examples of situations where USCIS will accept expired labor certification applications include:

1. Where a new petition is required due to a successor-in-interest case;
   
2. Where the petitioning employer wishes to file a new petition subsequent to the denial, revocation or abandonment of the previously filed I-140 immigrant petition and the labor certification application was not invalidated due to material misrepresentation or fraud relating to the labor certification application;
   
3. Where the amended petition is requesting a different visa classification than the visa classification requested in the previously filed I-140 immigrant petition; or
   
4. Where the previously filed I-140 immigrant petition has been determined to have been lost by the USCIS or Department of State.

Labor certification applications that are not filed with an I-140 immigrant petition during the 180-day validity period will expire and an employer will not be able to file an I-140 immigrant petition based on those labor certification applications for the designated beneficiary at a later time. In addition, this will also affect H-1B extensions of status since employers will not be able to use the expired labor certification applications as the basis for continuing extensions of H-1B status beyond the six year limitation under the American Competitiveness in the 21st Century Act (AC-21). Accordingly, if employers wish to continue to extend a foreign national’s H-1B status based on a labor certification application, the employer must timely file the I-140 immigrant petition based on the approved labor certification application within the 180-day deadline.

As the validity of approved labor certifications form the basis of a foreign national’s ability to work and remain lawfully in the United States, it is essential that employers who have labor certification applications that were approved prior to July 16, 2007 file their I-140 immigrant petition before January 12, 2008; and, for those cases in which the labor certification was, or is, approved after July 16, 2007, employers should be mindful of the 180-day validity period.