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Can I Refile a Withdrawn I-140? Can I Refile an I-140 if the Labor Certification is Expired?

Whether withdrawn subsequent to approval or withdrawn while pending approval, a withdrawn I-140 can be re-filed. This is true even if the Labor Certification is expired!

Generally speaking, any EB-2 or EB-3 Immigrant Petition for Alien Worker(s) (“Form I-140”) will require an Application for Permanent Employment Certification approved by the United States Department of Labor. The Application for Permanent Employment Certification is known by many names—a PERM, a Labor Certification, and/or ETA 9089.

Once approved by the Department of Labor, an ETA 9089 Labor Certification is typically valid for 180 days, or six (6) months. To make use of this Labor Certification, the petitioning employer must file a Form I-140 within that six-month validity period. When the Department of Labor approves the Labor Certification, the Department of Labor will clearly provide the range of dates for the Certification’s validity.

Therefore, to make use of this example Labor Certification, the sponsoring employer must file the I-140 during the validity period of the Labor Certification. As a matter of best practice, sponsoring employers should get their I-140 filing to USCIS on or before this expiration date. Simply post-marking the filing by the expiry date is not enough—instead, USCIS should have the filing “in hand” by the end of the last day. Ensuring a timely filed I-140 is the most important step a petitioning company can take following the approval of the Labor Certification. Failure to do so will likely render the Labor Certification null and void, requiring the burdensome and time consuming Labor Certification process be initiated from square-one.

So long as an I-140 is properly filed during the validity period of the Labor Certification, USCIS will accept the I-140 petition and process it as normal. Typically, an I-140 approval will require a demonstration the sponsored-employee possesses the education and experience required by the Labor Certification as well as the sponsoring-employer’s ability to pay the sponsored-employee’s wage as identified in the Labor Certification.

I-140 approvals are simple to obtain. In real terms, the I-140 approval will allow the sponsored-employee to immediately file their Form I-485, so long as they possess a current priority date. In the instance an individual cannot immediately file the Form I-485 due to a priority date backlog, the approved I-140 would allow for H-1B extensions beyond year six.

However, a company might withdraw the I-140, either while the case is pending or subsequent to approval. A company may withdraw the I-140 because they no longer seek to sponsor the Alien, or perhaps the Alien has left the company’s’ employment and therefore there is no longer any reason to support the position. When an I-140 is withdrawn, the petitioning company generally avoids any liability they have would toward that I-140 petition, particularly as it relates to ability to pay the Labor Certification wage under 8 CFR 204.5(g)(2). Thus, once a company withdraws an I-140 petition–regardless of how long it has been approved–a company no longer has to support that I-140, for any reason.

In a typical scenario, this withdrawal happens long after the Labor Certification has expired. However, it is crucial to note that expired Labor Certifications may still have immense utility. We know that USCIS is required to expired Labor Certifications for a number of reasons. Generally speaking, USCIS will accept an I-140 petition filed with an expired Labor Certification if the Labor Certification was submitted in support of a previously filed I-140 during the Labor Certifications validity period. In essence, so long as you file an I-140 within the validity period of the Labor Certification that Labor Certification then becomes valid indefinitely for any subsequent I-140 filings based upon that Labor Certification. These “subsequent” filings with an expired Labor Certification may occur when:

  • The petitioner wishes to file a new petition subsequent to the withdrawal, denial, revocation, or abandonment of the previously filed petition, and the permanent labor certification was not invalidated due to material misrepresentation or fraud relating to the labor certification application;
  • There is a successor-in-interest employer change following a  sale or acquisition, which requires a new or amended I-140 petition;
  • The petitioner files an amended petition to request a different immigrant visa classification than the classification requested in the previously filed petition (“I-140 Downgrade”, or in limited instances “I-140 Upgrade”); or
  • USCIS or U.S. Department of State (DOS) determines that the previously filed petition has been lost.

Does USCIS adjudicate petitions submitted with an expired Labor Certification any differently than they would if the Labor Certification was “fresh”? Our view is absolutely not—USCIS will review the subsequently filed I-140 as if the Labor Certification never expired in the first place.

When filing with an expired Labor Certification, there are a few crucial “administrative” steps than should be undertaken. First, there is one or two boxes on the I-140 Form that should be selected to notify USCIS an expired Labor Certification is being leveraged. Second, it’s important to submit a copy of any previous I-140 receipt or approval notices filed based on that now-expired Labor Certification.

After addressing this predicate issue, i.e. whether the company is entitled to file based on an expired Labor Certification, USCIS will then review the case as they would any other case. That is, USCIS will look to see if the sponsored employee/Alien has the education and experience required by the Labor Certification as well as inquire into the Petitioner’s ability to pay the wage set out in that Labor Certification. Utilizing an expired Labor Certification can be immensely beneficial to employers and their employees, alike. When and where possible, it can save YEARS of processing time, lock in indefinite non-immigrant visa extensions such as H-1Bs beyond year six, and immensely speed up an Alien’s green card journey.

For a quick read about utilizing an expired Labor Certification to downgrade from EB-2 to EB-3 to expedite a Green Card filing, please see our article here. For more information, or for a detailed conversation regarding any Labor Certification issues and/or I-140 process, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.