Substituted Beneficiaries and Old Labor Certifications

8 C.F.R. §245.10(j) directly governs labor certification substitutions

Current federal regulation provides three distinct rules.

1. Only the worker who was the beneficiary of the labor certification on or before April 30, 2001 can be considered grandfathered through that application;
2. A worker who had previously been the beneficiary but was replaced by another worker on or before April 30, 2001 is not grandfathered through that labor certification; and
3. A worker substituted for the prior beneficiary after April 30, 2001 is not grandfathered through the labor certification.

Why old labor certifications sometimes contain different beneficiaries

Historical labor certification practice permitted beneficiary substitutions in circumstances that no longer resemble modern PERM processing.

An old file may therefore contain:

• An original ETA 750 identifying Worker A;
• A later ETA 750B identifying Worker B;
• Attorney correspondence requesting substitution;
• DOL correspondence;
• An I-140 filed for a replacement worker;
• Conflicting names across government records; or
• A labor certification ultimately used by someone other than the person originally named.

April 30, 2001 is both a filing cutoff and a beneficiary cutoff

The statute requires the qualifying labor certification to have been filed by April 30, 2001.

Section 245.10(j) adds a second timing inquiry: which worker held the beneficiary position within the protected period?

The worker who was the beneficiary within the cutoff period

The worker who remained the beneficiary on or before April 30, 2001 can potentially be grandfathered if the underlying labor certification also satisfies the remaining §245(i) requirements.

Those additional requirements include:

• Proper filing under the historical labor certification rules;
• Filing on or before April 30, 2001;
• Approvable-when-filed status;
• Factual merit;
• Non-frivolous filing; and
• December 21, 2000 physical presence for the principal where applicable.

The worker replaced before April 30, 2001 does not remain grandfathered through that labor case

This part of the regulation is often counterintuitive.

Suppose:

1. Employer files labor certification for Worker A in 1998;
2. Worker A leaves the employer;
3. Employer substitutes Worker B in 2000; and
4. The application remains pending past April 30, 2001.

Under §245.10(j), Worker A—the previously replaced beneficiary—is not grandfathered through that application.

A worker substituted after April 30, 2001 cannot acquire grandfathering

The regulation is equally explicit for later substitutes.

Suppose:

1. A labor certification was properly filed in 2000;
2. Worker A remained the beneficiary through April 30, 2001;
3. Worker B was substituted into the case in 2003; and
4. An I-140 was later filed for Worker B.

Worker B does not become grandfathered merely because the labor certification itself was filed before the statutory deadline.

Can both the original and replacement workers be grandfathered through the same labor certification?

Section 245.10(j) is designed to prevent that result where one worker was replaced by another within the protected period.

If Worker A was replaced by Worker B on or before April 30, 2001:

• Worker A is not grandfathered through that labor application; and
• Worker B can potentially be grandfathered if all other requirements are satisfied.

If Worker B was first substituted after April 30, 2001:

• Worker B is not grandfathered; and
• The historical status of Worker A must be analyzed under the actual beneficiary record and applicable regulation.

The labor certification must still have been approvable when filed

Substitution analysis does not replace the ordinary grandfathering test.

Current 8 C.F.R. §245.10(a)(3) requires the labor certification to have been:

• Properly filed;
• Meritorious in fact; and
• Non-frivolous

based on the circumstances existing when the labor certification was filed.

See Approvable When Filed Standard.

Matter of Butt can help establish factual merit

Matter of Butt, 26 I&N Dec. 108 (BIA 2013), addresses the approvable-when-filed standard for old labor certifications.

The BIA held that a properly filed and non-frivolous labor certification with no apparent bar to approval when filed is presumed meritorious in fact.

Priority date does not answer the substitution question

An old priority date can prove that a labor certification originated before April 30, 2001, but it does not necessarily identify the worker who is grandfathered.

A later substitute worker may inherit or use an old labor certification priority date for historical petition purposes without acquiring §245(i) grandfathering through that substitution.

A later I-140 approval does not create §245(i) grandfathering

A post-April 30, 2001 replacement beneficiary may later obtain an approved I-140 based on the old labor certification.

That approval does not alter the grandfathering rule.

An AAO decision addressing a worker substituted in 2003 specifically noted that the worker could not receive §245(i) grandfathering because the substitution occurred after April 30, 2001.

The old grandfathering employer does not have to remain the current employer

Current 8 C.F.R. §245.10(k) provides that a person adjusting under §245(i) through an employment-based category does not have to work for the petitioner that created grandfathering unless the applicant is actually adjusting based on employment for that same petitioner.

A properly grandfathered worker may therefore later use:

• A different employer;
• A later labor certification;
• A later EB-2 or EB-3 I-140;
• An EB-2 NIW;
• An EB-1A self-petition;
• A family-based immigrant petition; or
• Another proper adjustment basis.

Derivative spouses and children of the qualifying beneficiary

Once the correct grandfathered principal beneficiary has been identified, qualifying spouses and children must be analyzed separately under INA §203(d) and the derivative grandfathering rules.

Potential evidence includes:

• Marriage certificate;
• Birth certificates;
• Date each relationship arose;
• The principal's beneficiary status by April 30, 2001; and
• Whether the spouse or child qualified for derivative immigrant classification.

See Derivative Grandfathering Under §245(i).

December 21, 2000 physical presence can still apply

If the qualifying labor certification was filed after January 14, 1998, the principal grandfathered worker generally must prove physical presence in the United States on December 21, 2000.

The substitution chronology can therefore create a two-part historical inquiry:

1. Which worker was the qualifying beneficiary under §245.10(j)?
2. Did that principal worker satisfy the December 21, 2000 presence requirement if the labor certification was filed after January 14, 1998?

See December 21, 2000 Physical Presence Requirement.

A properly grandfathered worker can later use a completely different immigrant basis

Current §245.10(i) expressly permits a grandfathered person to seek adjustment based on another approved petition, Diversity Visa selection, or other proper adjustment ground.

For example:

1. Worker A was the qualifying beneficiary of a 2000 labor certification;
2. Worker A became grandfathered;
3. The old employer later closed;
4. Years later Worker A receives an approved EB-2 NIW; and
5. Worker A invokes the old labor certification only to establish §245(i) grandfathering.

Reconstructing an old substitution history

Cases involving beneficiary substitutions can be especially difficult because the records may be more than 25 years old.

Look for:

• Original ETA 750A and ETA 750B;
• Replacement ETA 750B;
• State workforce agency records;
• DOL correspondence;
• Substitution requests;
• INS or USCIS memoranda in the A-file;
• Old I-140 petitions;
• I-140 approval or denial notices;
• Attorney correspondence;
• Employer personnel files;
• Priority-date records;
• USCIS FOIA materials;
• DOL records; and
• Immigration court exhibits.

Evidence checklist

Examples

Frequently asked questions