AAO Decision on Substituted Labor Certifications

In a decision dated as of March 26, 2010, the Administrative Appeals Office (AAO) has spelled out what we think is an an important policy change affecting employment-based permanent residency applicants who are beneficiaries of a labor certification either as a substitute or as the initial beneficiary of a subsequently-substituted labor certification.

Brief Background on Labor Certification Substitutions

Until July 16, 2007, relevant DOL and USCIS rules permitted an employer to “substitute” the beneficiary of an already approved labor certification.  As a result, in a number of labor certifications, approved before July 16, 2007, there may be more than one beneficiaries, more than one of which may be awaiting a visa number to become available and to be able to adjust status to a permanent resident.

Factual Background of the AAO Decision

The facts of the case underlying the recent AAO decision are as follows:  a company filed a labor certification on behalf of an Employee A.   The labor certification was approved and the employer filed and secured approval of a Form I-140 for the benefit of Employee A.   Employee A subsequently filed adjustment of status application and waits for a visa number to become available.

After Employee A’s I-140 is approved and after Employee A’s I-485 is pending for more than 180 days, making Employee A eligible for AC21 portability, the employer decides that it no longer wishes to support Employee A’s permanent residency application and withdraws Employee A’s approved I-140.  At the same time, the employer notifies USCIS that it wishes to substitute the beneficiary of its approved labor certification with Employee B.  Subsequently, the employer obtains approval of I-140 on behalf of Employee B and Employee B is able to adjust her status in the U.S. to permanent resident, while Employee A is still awaiting for a visa number.

AAO Decision – Only One Person Can Be Beneficiary of the Labor Certification

The AAO, after reviewing congressional intent and USCIS memoranda on the subject, concludes that it is impossible that Congress has intended that more than one beneficiary can obtain a permanent residency based on one labor certification.  As a result, it held that Employee A, even though she is eligible for AC21 portability and even though that she was the initial labor certification beneficiary, is not eligible for adjustment of status because Employee B has already become permanent resident on the basis of the same labor certification.

Who is Affected and Conclusion

This decision does not affect a large percentage of the currently pending adjustment of status applications.  However, those substituted beneficiaries who are currently waiting for a visa number, may be affected very negatively by this decision.  Many substituted labor certification beneficiaries wait for a visa number in the comfort that their application is portable under AC21 even if their employer has substituted them out of their labor certification.   However, the danger is that USCIS will look at the procedure as a “race to adjust status” whereby the substituted beneficiary who adjust status first gets the benefit of the labor certification while everybody else is in danger of adjustment of status denial.