United States Citizenship and Immigration Services (USCIS) has issued new procedures for filing a Form I-140 or Petition for Alien Worker (which requires an approved LC) in repose to the Department of Labors final rule on Labor Certification, which made a few amendments which included terminating LC substitution and introducing an 180 day expiry limit on approved LCA, among other things. The final rule was published on May 17, 2007 and will come into effect on July 16.
Filing I-140 prior to July 16, 2007
Prior to the July 16th deadline, USCIS will continue to accept I-140s as it does currently. However, Premium Processing services have been cancelled for I-140s, as last minute applications are piling up. Petitions filed without the original labor certification will be rejected unless there is record of that certification being filed previously for another beneficiary or a the employer applies for a duplicate labor certification.
Filing I-140 On or After July 16, 2007
USCIS will reject any I-140 petitions filed on July 16th or after, if it requests a labor certification substitution. If any application accepted is later found to have been previously filed under a different beneficiary’s name, it will be rejected.
Working with new time limit on LCA
From July 16th onwards, all Form I-140s have to be filed within 180 days of the date of approval on the LCA. USCIS will reject petitions that have labor certification whose validity period has expired. Applications which are accepted and later found to have expired LCAs, will be rejected also.
As an exception USCIS will accept amended or duplicate Form I-140 petitions filed with a copy of a labor certification that is expired, if the original Form I-140 was filed within the validity period of the original approved labor certification.
In cases where the I- I-140 is being re-filed under a different visa classification for the same beneficiary or where the original petition has been lost by USCIS or DOS, the new guidelines require that -
- A new Form I-140 petition is filed
- The petitioning employer wishes to file a new petition for the same alien beneficiary subsequent to the denial, revocation or abandonment of the previously filed petition, and
- The labor certification was not invalidated due to material misrepresentation or fraud relating to the labor certification application.