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Joel Stewart on PERM Labor Certification

PERM: Kooritzky Revisited

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Not too many years ago Samuel Kooritzky, a Virginia immigration lawyer, sued the Department of Labor and argued successfully that employers should be able to substitute aliens in approved labor certification. Prior to the Kooritzky suit,DOL had usually held that a labor certification could only be used once for the alien named in the certification.


Kooritzky insisted that the labor certification did not attach to the alien or employer, but only established the fact that no qualified US workers were available at that time and place of recruitment to fill a position offered by a US employer. The language of the statute places the burden of proof on the Certifying Officer to prove that there are no US workers able, qualified, willing or available to perform the job duties, provided that the Employer proffers a properly executed application in accordance with the regulations.


Kooritzky enjoyed only limited success, however, because, he was subsequently indicted for fraud
in labor certification proceedings, in which he was found to have created false job opportunities by forging signatures for recycled labor certifications. The plan is said to have involved approximately 2,700 fraudulent labor certification applications, some of which may have been sold to aliens for $20,000 or more so they could be substituted for the named beneficiary on approved labor certifications.


Following the Koortizky debacle, the DOL responded en suite by promulgating new rules prohibiting the sale, transfer or substitution of labor certifications.


A new betrayal of trust has now come to my attention. A paralegal-turned-attorney in New York
City created an advertising and recruitment business ostensibly to assist employers in placing ads for job opportunities in newspapers, journals and other forms of commercial media. Unbeknownst to his superiors, who are prominent lawyers with impeccable credentials, the crafty malfeasant created his
recruitment firm without their knowledge and collected nearly $500,000.00 for labor certification recruitment ads, some of which were never published.


When the supervising attorney discovered this wrongdoing, he immediately fired the culprit, who has just been named as a defendant in violation of 1831 U.S.C. 1 & 2 in a federal indictment brought in the United States District Court of New Jersey.


Questions now arise about the immigration consequences for the victims, who abound in numbers. Specifically, what will become of the PERM applications, I-140's, and residency applications
which were processed in good faith by the parties who had no knowledge of the underlying deceit? 


It appears that victims may fall into the following categories: (1) PERM applications in the
pipeline; (2) Approved PERM applications with I-140 Petitions in the pipeline but not yet approved; (3) I-140 Petitions approved; (4) Applications for permanent residency pending at US Consulates abroad or at USCIS offices in the US; and (5) Aliens who have already been granted permanent residence. 


Under the pre-PERM rule, approved labor certifications could be invalidated (but not revoked) by the
DHS, a Consul or a Court, based on a finding of fraud or willful misrepresentation of a material fact involving the labor certification application. The finding of invalidation had to be made in ccordance with those agencies' procedures or by a court. Revocation did not exist as a separate action.


PERM has maintained the option of invalidation by DHS, a Consul or a Court, but has added that revocation is now permitted by the CO if the CO believes that the approval of an application was not justified.  


The distinction between invalidation and revocation is that invalidation for fraud or willful misrepresentation involves wrongdoing with scienter, presumably by the parties who applied, while revocation is based on the CO's belief that the approval was simply not justified. Thus an invalidation under PERM should only occur when the attesting parties have deliberately sought to mislead, while revocation may occur, for example, when a mistake was made.


The difference between these two terms may sometimes become blurred when reference is made to
regulations and interpretations of specific government agencies.


Given that labor certifications and I-140 immigrant petitions are two distinct applications filed for processing by DOL and DHS, stakeholders must consider invalidation for fraud or willful misrepresentation as a possibility for cases in the pipeline, as well as challenges by DOS and DHS if the immigrant petitions have already been approved and the aliens have residency applications pending at a US Consulate abroad.


Absent a showing of fraud or willful misrepresentation by the parties, the CO may revoke a labor certification approval upon the belief that approval was not justified. If that is true, the lack of a finding of fraud or willful misrepresentation might enable employers to file new applications and retain the original priority date for petitions that were already approved but not invalidated for fraud or willful misrepresentation.


The treatment of these terms of art by three agencies - DOL, DHS, and DOS - and the interplay
between and among them is itself very complex and will be the subject of another blog.


The criminal complaint in this case was just filed in District Court and much is still unknown about
the details, but it may prove to be a ground-breaking case for the interpretation of legal rights and obligations under the PERM Rule and Section 204 of the INA
which covers Immigrant Visa Petitions.


In the Kooritsky case, it has been reported that guidelines to determine the fate of the clients included the possibility of deferred action on a case by case basis; review of applications and petitions with no presumption of fraud, with the burden of proof being on the government to prove fraud; retention of appeal rights by the victims; the routing of legitimate applications to appropriate
offices for adjudication; and orders of supervision for aliens placed into removal proceedings.


Prosecutorial discretion includes the option not to disturb specific cases. Discretionary issues might include the broad and bona fide search for US workers documented by the Employer, notwithstanding the lack of adherence to specific advertising requirements. Each case would need to be examined with specificity to determine the recruitment efforts that occurred along with those that did not and the overall effect on the US Job Market.


The final bailout for the innocent victims who have already become permanent resident aliens might be found under Section 212(k) of the INA, which provides a waiver to immigrants who were unaware of their ineligibility for admission and who could not have discovered the ineligibility by exercise of reasonable diligence.


 


 

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