PERM: Documenting 245-i Eligibility
The start date for the PERM law is March 28, 2005. Prior to this date, an earlier version of the law was used to process alien labor certification. In particular, the older rule provided a process for investigation of fraud or misrepresentation by the Department of Labor. The Inspector General had to review any case suspected of fraud by the State Workforce Agency or the DOL Employment and Training Administration, and if none were found, then the agency could continue processing the application to completion.
After processing, the application and petition, and if approved, the Immigration Service or State Department could make a finding of fraud or misrepresentation at a later date and revoke the alien labor certification. Of course, a finding of fraud or misrepresentation requires a high level of proof that does not always exist where suspected, but not proved. Perhaps for this reason the agencies usually allege fraud or misrepresentation but do not make a conclusive finding of same.
On December 21, 2000, adjustment of status under 245-i was extended to allow aliens out of status to apply for permanent residency, if a petition I-130, I-140, or I-360, or an Application for Alien Employment Certification were filed on or before April 30, 2001. It was contemplated that the beneficiaries of these petitions or applications would then continue to process their cases to receive permanent residency, including an application for adjustment of status under 245-i.
Later, the INS extended the deadline slightly, to allow for petitions or applications that were mailed on the 30th, and not necessarily received at the INS or DOL office on the 30th of April, but several days later.
The 245-i law was supposed to grandfather the alien and his family (spouse and children under 21 at the time), so they could continue processing their cases after April 30, 2001, and pay a fine of $1,000.00 to avoid returning to the Consulate in their country of original to obtain residency.
However, aliens who return to the Consulate not only have to pay the cost of an airplane ticket and a hotel room abroad, but also may be subject to a bar of 3-10 years, due to the unlawful presence rule, which became the law of the land on April 1, 1997.
As the 245-i law was announced in 2000, the government stated that all applications would serve to "grandfather" an alien if the application were (1) signed, (2) filed before April 30, 2001, and (3) approvable when filed. The requirement "approvable when filed" was interpreted as requiring that the application not be fraudulent. (Makes sense!)
In recent years, grandfathering has been revisited, and the meaning of "approvable when filed" has undergone a reinterpretation, so that in some cases the substance of the application or petition may now be examined at the time of adjustment to determine if it were approvable by the agency (INS or DOL). In some instances, this type of inquiry is not difficult. An example would be a family petition, where a son or daughter files a petition for his or her parent. Most cases would be approvable, except for those where the petitioner fails to prove the family relationship.
More difficult issues arise, however, with labor certification cases, which require consideration of complex fact patterns to bring to completion, including the future course of the petitioning company, the availability of US workers, and other details too numerous to mention here.
In the rush to file applications in 2000 and 2001, many petitions and applications for labor certification were filed by employers, including I-140 petitions for multinational companies. In those days, the filing instructions required both a petition (I-140) and an application for labor certification (ETA 750-A and B) be filed directly with the Immigration and Naturalization Service.
The ETA A & B forms for multinationals were not submitted individually to the DOL for processing, but were considered to be "precertified" and simply appended to the I-140, with the employer and alien's signatures, in accordance with DOL instructions under 20 CFR (Schedule A). This schedule included jobs that were "precertified," such as as nurses, physical therapists, and multinational managers or executives.
Accordingly, an I-140 might have been filed with an individual approved labor certification, or with a Schedule A "precertified" labor certification, but were both similar in substance. Each had two components -- the labor certification and the I-140 petition.
In reviewing cases of persons who request a second opinion about their 245-i denials, I note that some aliens have been denied grandfathering privileges, because the original I-140 was denied for suspected fraud or misrepresentation. The suspicion is usually alleged in the denial of the I-140 but not actually proved. The denials are then couched in terms of the petitioner's failure to meet the burden of proof, rather than definitive agency finding of fraud or misrepresentation.
An interesting situation arises when an I-140 is denied for alleged fraud or misrepresentation, but without any action taken against the labor certification. I am referring here not only to the individual approved labor certifications, but even to the Schedule A labor certifications. As mentioned above, Schedule A labor certifications are "approved" by DOL, or, to be more exact, are "pre-approved."
In those instances, where a grandfathered alien has an I-140 that was not approved, and where the alien has therefore failed to qualify for grandfathering because the I-140 was not approvable when filed, the alien may still argue that he or she should be considered to qualify under 245-i because the labor certification was "approved" and has never been revoked.
In such cases, the alien may request DHS to approve a 245-i adjustment, even where the I-140 was not approved, because the Alien Labor Certification Part A & B were pre-approved when filed on or before April 30, 2001.