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Joel Stewart on PERM Labor Certification

PERM: Wrong Box Checked on I-140

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I received an inquiry from an attorney who is concerned about the USCIS denial of I-140 employment based petitions that have the wrong box indicated for category of petition (The choices on the petition include different preference categories 1-3).  For cases involving PERM, only the 2nd preference or 3rd preference boxes may be chosen.

The attorney states the following:

"I noticed that you have written a few times about the I-140 'wrong box' problem.  I am considering a legal challenge to that practice in an effort to see if I can get a whole lot of people their money back under what appears to be a double filing fee. I'm working with another attorney who has more constitutional law/APA experience and he's very concerned to  an estimate of how many times USCIS has denied an I-140 for the wrong box being checked. We are especially interested in EB-3 skilled worker/professional denials for 'wrong box' submissions after the 01/06/2010 I-140 form revision because there is no advantage to be gained from checking the wrong box and because the attached labor certification shows clearly what category the petition should be filed under."

The attorney asked me if I had any estimate based on my experience and work with AILA as to how many I-140's have been denied since 01/06/2010 based on wrong box submissions. Unfortunately, I do not have access to this type of information, but I believe that such errors are not uncommon. 

However, the attorney implies that 'wrong box' mistakes on the I-140 may be driven by an attempt by Petitioners to gain some advantage in the preference process.

Frankly, I had never thought about that.

The examples I have seen were simply errors (typographical) on the forms, in which someone filled out the form and simply checked the wrong box. Some attorneys believe that "filling out forms" should be relegated to marginally qualified persons whom they hire to assist them.

In actual fact, the work of properly filling out forms is very demanding and requires a great deal of education, experience, and training.

One case I saw was a third preference filed as an EB-1-3. There was no advantage to filling out the wrong box as a multinational executive. The attorney and client had a great deal of difficulty after the error in filing, since the Service continued to process it as an EB-1-3, and the client was clearly qualified for 3rd preference. The confusion went one for years, with RFE's, Denials, and appeals, because the attorney (and subsequent attorneys) still did not realize that the wrong box was checked!

This confusion occurred because the service continued to adjudicate the petition as a multinational (accordng to the box checked) and not as a third preference based on a labor certification. The Service did not notice (or care) that the documentation, including an approved PERM, were not for first preference, and the three attorneys who handled the case did not understand or correct the 'wrong box' mistake.

I believe that 'wrong box' mistakes are not uncommon and are usually just the result of incompetence.

The current version of the I-140 form is easier to understand than before and should eliminate most of the unfortunate errors made in 'wrong box' selection.

As I have been practicing for many years, I recall a time when the Service would offer to correct the form if the 'wrong box' was checked, or, if not, the petitioner could request the error to be corrected. I even saw cases, albeit years ago, when the Service wrote to the Petitioner asking if they would like to change the category checked on the form (usually from 2nd to 3rd) if it seemed that an approval could be issued in 3rd but not in 2d.

However, in recent years the Service has taken the position that the only way to correct such an error is to file a new petition with a new fliing fee.

Most observers realize that nowadays the Service has not only increased its fees but seeks to require petitioners and applicants to file and refile, just to charge more money from and also to discourage some types of filings.

Unfortunately, the Service is not delivering the quality determinations that were promised when the fees started to go up. Fees are currently at astronomical levels, and still rising, while service quality in adjudications has plummeted to new lows.

Currently, there are no fees for PERM processing, however, it is possible that they may be instituted at some time in the following.





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