INA §245(i) expressly recognizes old labor certifications
INA §245(i)(1)(B)(ii) includes a qualifying beneficiary of an application for labor certification under INA §212(a)(5)(A) filed pursuant to Department of Labor regulations on or before April 30, 2001.
Current 8 C.F.R. §245.10 adds that the application must have been:
- Properly filed;
- Filed on or before April 30, 2001; and
- Approvable when filed.
INA §245(i) can be established through either a qualifying immigrant petition under INA §204 or a qualifying permanent labor certification application under INA §212(a)(5)(A).
The pre-2001 labor certification system was different from modern PERM
Most qualifying §245(i) labor certification filings predate the modern PERM system.
PERM became effective in 2005. A grandfathering labor certification from the statutory period will therefore usually involve the older labor certification process rather than today's electronic ETA Form 9089 process.
Records may have passed through:
- A state workforce agency;
- A state employment service office;
- A Department of Labor regional office;
- An employer's immigration attorney; and
- Later federal backlog-processing systems.
Many qualifying cases involve Form ETA 750
The historical Application for Alien Employment Certification was generally filed on Form ETA 750.
Matter of Butt itself involved an ETA 750 filed with the New York Department of Labor on April 30, 2001.
Important historical records may include:
- ETA 750 Part A;
- ETA 750 Part B;
- State labor agency date stamps;
- DOL case numbers;
- Recruitment correspondence;
- Requests for information;
- Employer responses;
- Withdrawal notices;
- Denial notices; and
- Later backlog processing correspondence.
The labor certification had to be filed on or before April 30, 2001
The LIFE Act extension ended on April 30, 2001.
A labor certification first filed after that date cannot ordinarily create new §245(i) grandfathering.
Evidence of timing can include:
- Agency date stamps;
- Official labor certification records;
- State workforce agency receipts;
- DOL correspondence referencing the filing date;
- Attorney transmittal records;
- Certified mail records; and
- Later immigration records consistently identifying the original filing date.
What does “properly filed” mean for a labor certification?
Current 8 C.F.R. §245.10(a)(2)(ii) provides that a qualifying labor certification must have been properly filed and accepted pursuant to the Department of Labor regulations governing the old labor certification process.
The analysis can involve:
- The correct historical form;
- The proper filing office;
- Required signatures;
- Employer information;
- Beneficiary information;
- The offered position;
- Acceptance by the labor agency; and
- Whether the submission legally constituted a filed labor certification rather than an incomplete inquiry or preparatory document.
A labor certification that was date-stamped and accepted for processing provides materially stronger evidence of proper filing than a draft application never received or accepted by the labor agency.
The labor certification must have been approvable when filed
Current regulation defines “approvable when filed” as requiring the labor certification, on its filing date, to have been:
- Properly filed;
- Meritorious in fact; and
- Non-frivolous.
“Frivolous” is defined in this regulation as patently without substance.
Matter of Butt and the presumption of factual merit
Matter of Butt, 26 I&N Dec. 108 (BIA 2013), established an important rule specifically for labor certifications.
A beneficiary will be presumed to have a labor certification that was meritorious in fact when the labor certification was properly filed, non-frivolous, and no apparent bar to approval existed when it was filed.
This matters because old labor certifications were often never fully adjudicated.
A case may have been:
- Withdrawn;
- Closed;
- Denied after later correspondence;
- Superseded by another labor certification;
- Lost during agency transfers; or
- Abandoned after an employer's circumstances changed.
The absence of a final DOL approval does not necessarily prove that the original filing lacked merit.
A later denial does not automatically destroy grandfathering
Current 8 C.F.R. §245.10(i) states that denial of a qualifying labor certification that was properly filed by April 30, 2001 and approvable when filed does not prevent the grandfathered beneficiary from later seeking §245(i) adjustment on another proper basis.
The reason for the denial is therefore critical.
| Later Event | Potential Grandfathering Effect |
|---|---|
| Employer later fails to pursue processing | Does not necessarily show the case lacked merit when filed. |
| DOL later requests amendments or recruitment | Does not automatically establish that the filing was not approvable when filed. |
| Employer later closes | Can be a post-filing circumstance. |
| Job later disappears | Can be a post-filing circumstance. |
| Worker was unqualified when filed | Can indicate an apparent bar existing at filing. |
| Job never actually existed | Can defeat factual merit. |
| Application was patently without substance | Fails the non-frivolous requirement. |
Withdrawal of the old labor certification
A later withdrawal does not necessarily eliminate §245(i) grandfathering.
Matter of Butt involved a record indicating that the employer may have withdrawn the old labor certification after Department of Labor processing had begun.
The BIA nevertheless focused on whether the application satisfied the grandfathering requirements when it was filed.
What if the old employer or job no longer exists?
The grandfathering function of the old labor certification can survive even when:
- The employer closed;
- The business was sold;
- The worker left the employer;
- The position disappeared;
- The employer withdrew sponsorship;
- The beneficiary changed occupations; or
- A completely different employer later filed the immigrant petition used for adjustment.
Substitution of beneficiaries on old labor certifications
Old labor certification rules historically allowed beneficiary substitutions in circumstances that no longer exist under modern labor certification practice.
Current 8 C.F.R. §245.10(j) contains a specific §245(i) grandfathering rule:
- Only the worker who was the beneficiary of the labor certification on or before April 30, 2001 can qualify through that filing;
- 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 application; and
- A worker substituted for the earlier beneficiary after April 30, 2001 is not grandfathered through that labor certification.
Derivative spouses and children
A spouse or child who qualified as a derivative beneficiary when the qualifying labor certification was filed can potentially acquire grandfathered status.
That can allow the derivative to invoke §245(i) later even through a different immigrant basis.
The analysis should establish:
- The principal worker's qualifying labor certification;
- The derivative relationship existing at the relevant time;
- The principal's grandfathering eligibility;
- The derivative's relationship under INA §203(d); and
- Any physical-presence issue applicable through the principal's filing date.
December 21, 2000 physical presence
If the qualifying labor certification was filed after January 14, 1998 and no later than April 30, 2001, the principal grandfathered beneficiary generally must establish physical presence in the United States on December 21, 2000.
| Labor Certification Filing | Physical Presence Rule |
|---|---|
| On or before January 14, 1998 | No separate December 21, 2000 physical-presence requirement. |
| January 15, 1998 through April 30, 2001 | Principal generally must establish presence in the United States on December 21, 2000. |
| After April 30, 2001 | Cannot create new §245(i) grandfathering. |
The applicant can later use a different immigrant petition
Current 8 C.F.R. §245.10(i) expressly allows the grandfathered beneficiary of a qualifying labor certification to seek adjustment on another proper basis.
Examples include:
- A later I-140 from a different employer;
- A later EB-2 NIW petition;
- A later EB-1A petition;
- A U.S. citizen spouse's I-130;
- Another qualifying family petition;
- A special immigrant petition; or
- A Diversity Visa selection.
The old labor certification can establish the applicant's §245(i) grandfathering while the new petition establishes the immigrant classification and visa availability used today.
Must the applicant work for the employer who filed the grandfathering labor certification?
Not merely because that employer created the grandfathering.
Current 8 C.F.R. §245.10(k) expressly provides that a §245(i) applicant adjusting through an employment-based category is not required to work for the employer whose petition grandfathered the person unless the applicant is seeking adjustment based on employment with that same employer.
How to prove an old labor certification when records are missing
Labor certification files from the 1990s and early 2000s can be difficult to reconstruct.
Potential evidence sources include:
- Old ETA 750 copies;
- DOL correspondence;
- State workforce agency records;
- Backlog processing correspondence;
- Former employer records;
- Former attorney files;
- Certified mail receipts;
- Immigrant petition files referencing the labor certification;
- USCIS A-file records;
- FOIA materials;
- Immigration court exhibits;
- Old adjustment applications;
- Priority-date records; and
- Contemporaneous correspondence from the employer or attorney.
Evidence checklist for labor certification grandfathering
| Evidence | Purpose |
|---|---|
| ETA 750 | Identifies employer, beneficiary, offered position, and original filing. |
| Agency date stamp | Establishes timely filing and acceptance. |
| DOL or state agency correspondence | Corroborates case number, processing history, and substantive viability. |
| Employer records | Shows the employer and offered position genuinely existed when filed. |
| Beneficiary qualifications | Addresses apparent eligibility for the offered position at filing. |
| Recruitment records | Can help reconstruct DOL processing and viability. |
| Withdrawal or denial notice | Helps distinguish later circumstances from defects existing at filing. |
| Marriage certificate | Can prove derivative spouse status existing at the qualifying filing date. |
| Birth certificate | Can prove derivative child status. |
| December 21, 2000 evidence | Required for qualifying principal filings after January 14, 1998. |
| Current immigrant petition | Establishes the immigrant basis used for adjustment today. |
Examples
| Old Labor Case | Potential Result |
|---|---|
| ETA 750 properly filed in 1997 and later abandoned | Potential grandfathering if approvable when filed; no December 21, 2000 presence requirement. |
| ETA 750 filed April 30, 2001, accepted by labor agency, later withdrawn | Potential grandfathering under Matter of Butt if properly filed, non-frivolous, and no apparent bar existed when filed. |
| Labor certification filed March 2001 for genuine worker, employer later closes | Grandfathering can survive a post-filing business closure if the original case was approvable when filed. |
| Worker first substituted into old case in 2003 | Later substitute beneficiary is not grandfathered through that labor certification. |
| Worker was beneficiary before deadline but replaced before April 30, 2001 | Current regulation states the previously replaced worker is not grandfathered through that application. |
| Grandfathered labor beneficiary later receives NIW approval | May potentially use old labor filing for §245(i) and NIW as the current adjustment basis. |
Frequently asked questions
Does the old labor certification have to have been approved?
No. Matter of Butt confirms that a labor certification can be approvable when filed even though it was not ultimately favorably adjudicated.
What if the employer withdrew the labor certification?
Withdrawal does not automatically destroy grandfathering. Determine whether the case was properly filed and approvable when filed and whether withdrawal resulted from circumstances arising later.
What if the employer no longer exists?
A later business closure does not necessarily eliminate grandfathering. The issue is whether the labor certification met the requirements when originally filed.
Can I use the old labor certification if I now have a different employer?
Potentially yes. Current regulation allows a grandfathered person to adjust through another immigrant basis and does not require employment with the old grandfathering employer unless adjustment is actually based on that employer's job.
I was substituted into a labor certification after April 30, 2001. Am I grandfathered?
No through that substitution. Current 8 C.F.R. §245.10(j) states that a worker substituted for the previous beneficiary after April 30, 2001 is not grandfathered through that labor certification.
Does my spouse also qualify?
Potentially. A spouse who qualified as a derivative beneficiary at the relevant time can acquire grandfathered status. A spouse acquired later requires the separate after-acquired-family analysis.
Does being grandfathered give me work authorization?
No. Grandfathering does not itself confer status or employment authorization.
Can I use §245(i) if I entered without inspection?
Potentially yes. Overcoming the ordinary inspection-and-admission requirement is one of §245(i)'s central functions, but the applicant must still satisfy all remaining requirements, including admissibility.