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, ETA 9089, and sometimes as an LCA. We prefer to avoid calling the Labor Certification an LCA as an LCA is more appropriately applied to non-immigrant visas such as an H-1B.

The purpose of the ETA 9089 is to test the labor market in the geographic area of the job offer to establish that there are no able, qualified, and available U.S. workers who are willing to accept the permanent job offer and that employment of the immigrant beneficiary will not adversely affect the wages and working conditions of similarly employed U.S. workers. To do so, this Labor Certification identifies the minimum education and experience level required to fulfill the position as well as the wages offered for the position. Upon satisfying the Department of Labor that there are no able, qualified, and/or available U.S. workers and that U.S. workers’ wages will not be adversely affected, the DOL will issue the approved Labor Certification (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.

Finding this validity period range is easy. An approved Labor Certification is typically between 12-20 pages long. At the bottom of every page of that approved Labor Certification (“ETA 9089”) the Department of Labor will state “This Certification is valid from DATE OF APPROVAL to DATE OF EXPIRY”. As an example, the range of Labor Certification validity will look like this:

“This Certification is valid from 08/24/2023 to 02/20/2024”

Therefore, to make use of this example Labor Certification, the sponsoring employer must file the I-140 between these dates. 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.

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 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 Brown PC 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 Brown PC 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.