USCIS Memo Amends Certain I-140 Related Provisions of AFM

In a Memorandum, dated September 14, 2009, Donald Neufeld, the Acting Associate Director for Domestic Operations as USCIS, provides some clarifications and amendments to the Adjudicator’s Field Manual relating to Form I-140, Immigrant Petition for Alien Worker.

1.  Definition of Employer for Outstanding Researchers or Professors under Section 203(b)(1)(B).

Each EB-1B petition  for outstanding researcher or professor must include, as part of the initial evidence, an offer of employment by a prospective U.S. employer which offers the candidate a tenure or tenure-track teaching position or a permanent research position.    The employer must be a university, institution of higher education or a department, division or institute of a private employer if such department, division or institute employs at least 3 persons full-time in research activities.  8 C.F.R.  204.5(i)(3).

The Neufeld Memorandum clarifies that government agencies do not fit into this definition of employer for EB-1B petitions unless the government agency is actually a U.S. university or an institution of higher learning.   Accordingly, government agencies which do not fit into this definition of employer may not pursue EB-1B petitions.  However, they may be able to apply under a different section assuming the beneficiary qualifies, for example Section 203(b)(1)(A).

2.  Approved Labor Certifications’ 180-day Validity Period

The Department of Labor (“DOL”) has established a validity period of 180 days for approved labor certifications.  As a result, an approved labor certification must be filed in support of a Form I-140 petition during the labor certification’s validity period.    DOL has not, however, established any rule regarding the approved labor certification’s validity when its expiration falls on a Saturday, Sunday or a federal holiday.

In the Neufeld  Memorandum, USCIS takes the position that it would accept I-140 filings where the supporting labor certification validity period ends on a Saturday, Sunday or a federal holiday on the next business day.    This is consistent with other USCIS policies which allow for the filing of petitions and applications that fall on a Saturday, Sunday or a federal holiday to be extended until the next business day.