Reusing an Approved Labor Certification When Refiling Subsequent to I-140 Denial

On June 1, 2007, USCIS Acting Associate Director Donald Neufeld issued a memorandum detailing revisions to the Adjudicator’s Field Manual. The memo addressed the use of labor certifications in the I-140, Petition for Immigrant Worker, application process and the length of time for which such a certification is valid.

When filing an I-140, a petitioner must have an approved labor certification. Labor certification applications should be submitted to the U.S. Department of Labor (DOL) for review prior to filing the I-140 with USCIS. Once approved, a labor certification remains valid for 180 days. If an approved labor certification is not filed with an I-140 within 180 days, the certification expires and the petitioner must apply for a new certification before filing an I-140 in the future. See 20 C.F.R. 656.30(b). However, according to changes made by Associate Director Neufeld’s June 2007 memo, a labor certification may be filed with an I-140 after it has expired, if the I-140 is being filed subsequent to the denial of a previously filed petition to which the labor certification was originally attached. See AFM at Chapter 22.2(b)(3)(F). In such cases, the labor certification must have been valid—unexpired—at the time the original I-140 was filed, and must not have been invalidated due to fraud or material misrepresentation.

In the event that the petitioner fails to maintain a copy of the labor certification, a duplicate copy can be issued by the DOL Certifying Officer. The beneficiary, the employer, or the employer’s attorney must submit a request to the Certifying Officer that issued the original labor certification, along with documentary evidence from a Consular or Immigration Officer that a visa application or petition has been filed. The request must also include the Consular Office or Department of Homeland Security (DHS) tracking number. See 20 C.F.R. 656.30(e). The duplicate copy will have the same filing and expiration dates as the original approved labor certification.

Summary: When filing an I-140 petition subsequent to the denial of a previously filed petition, the same labor certification may be used even if it has expired, provided that it was not expired at the time the original petition was filed and it was not invalidated for reasons of fraud or misrepresentation. Should a petitioner require a new copy of a labor certification, (s)he can request a duplicate copy from the Certifying Officer, with proof that a visa application or petition has been appropriately filed.