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Joel Stewart on PERM Labor Certification

PERM: Alien not qualified to Adjust Status!

Rating: 4 votes, 5.00 average.

Every week there are many new horror stories about PERM cases.

Attorneys like to blame the DOL whenever possible, but the fact is that some of the attorneys are not qualified to accept PERM cases because they have not studied the regulations or do not have a background in general immigration law principles.

This week a gentleman from Indonesia consulted with me about his PERM case. He works as an Asian chef in a Florida restaurant and wants to obtain permanent residency.

However, his story starts about 10 years ago, before PERM was enacted in March of 2005.

He came to the US in legal status, but thereafter became illegal, in 2002, had to register for NSEERS special registration, the US government program to register male aliens from countries with Muslim majorities in the population. After registering, he was referred to deportation court, because he had been out of status at the time of registration.

This particular Indonesian is a Christian. He alleged fear to return to Indonesia, where he could be persecuted.

He requested asylum from the immigration judge, and was denied, but nevertheless the judge granted him "withholding." This status enabled him to stay in the U.S., but without the possiblity to apply for residency, citizenship, travel out of the US  or to convey any immigration benefits to other family members.

Naturally he would like to become a permanent resident, so when a friend referred him to a lawyer he was advised to file a PERM case as an Asian cook. The lawyer said the PERM case would be difficult, but that with luck their PERM case could be approved, and after that he could become a permanent resident alien.

Now, four years later the alien does have an approved PERM case and an approved I-140 Immigrant Visa Petition, and is waiting on the quota to receive a green card.

But when he came to see me on a separate matter, I asked him about his immigration stauts and, unfortunately, had to give him some very bad news. Since he was granted Withholding, he cannot adjust status to a permanent residency visa,  such as a 3rd preference Asian cook.

The reason is that he has an order of deportation -- by definition, all aliens granted withholding have to have an order of deportation first -- and with this order, he can not "adjust status" to permanent residency. He can only obtain residency by leaving the country, but then he has to wait abroad for ten years because he has been ordered "deported".

Furthermore, he was out of status for many years after his tourist visa expired and is therefore subject to unlawful presence, which also carries a penalty of 10 years banishment.

The client was very surprised, since he thought that with an approved PERM, he would just wait for his priority date to become current.

There are some other possibilities in his case, but nothing to do with PERM. He has a child born here in the US, and in some shape or form this equity may enable him to apply for some other form of relief in the future, although to cure unlawful presence, he needs a parent or spouse legalized in the US. An American child will not suffice.

Meanwhile, the PERM case, and the approved I-140 will come to naught. I fear that there are many other persons who have approved PERM case but are not qualified to receive a green card!

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