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Joel Stewart on PERM Labor Certification

PERM: Sheepherder Gone Astray!

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Every immigration lawyer would like to work with a sheepherder, but most do not get the chance!

Recently I was asked to assist a matter involving a real, honest-to-goodness sheepherder.

Sheepherders in the US traditionally came from Spain, from the Basque country, but the one that came to my attention was from Peru, also a mountainous, scruffy terrain.

The life of a sheepherder is onerous. They roam with the sheep, climbing up and down the slopes of rugged mountains, and camping along the way. They even have primitive art forms - designs carved in trees and leather objects.

Due to the difficulties that sheep owners have to obtain qualified workers in the US, the government has always been liberal in granting work visas to them. In fact, there is a special provision in the PERM rule, permitting attainment of a specially approved PERM application, for applicants who have worked the previous three years as Sheepherders. The work has to be performed legally, and, if so, the employer can file an immigration petition on behalf of the sheepherder.

In this case, the sheephearder lost his way after contacting an unqualified representative (non-lawyer) to file the PERM application on his behalf.

For almost 20 years, this Sheephearder has dutifully gone in and out of the US, entering with authorization to work legally as a sheepherder whenever possible. He never violated status.

Unfortunately, the unqualified immigration consultant did not explain that even with an approved PERM case, the sheepherder would have to wait for an available visa before applying for permanent residency. In the interim, he would have to wait in his country, and not in the US.

The PERM application and I-140 petition were filed with many errors on the forms and without the required documentation, and he also submitted simultaneously an application for adjustment of status -- even though he did not have the right to apply for adjustment as an "other worker" without waiting on the quota for many years.

Despite the difficulties in this case, some interesting thoughts came to mind. Namely, this sheepherder, who has exceptional qualifications, and has been working as a supervisor of sheepherders, helping to breed them and train others, could apply as an exceptional alien. In this case, the alien would not have to wait for many years on the quota, because visas for exceptional sheepherders are readily available.

The alien's current illegal status might prevent him from legalizing. He has been out of status for some time, after receiving a denial of adjustment of status based on the improperly filed case.

If he is forced to leave the US, he may not be able to return for 10 years or more, because he has accumulated unlawful status!

The DHS has sent his case to the deportation court but there are arguments he could make. Some provisions in the law excuse sheepherders (and other persons) who fell out of status for technical reasons and through no fault of their own. Our sheepherder would have to prove that he relied on a person or agent designated by the DHS to represent him, and prove that the agent did not act properly.

Of course, a prduent practitioner should advise this sheephearder to go back to his country and wait for a new green card application to slowly wind its way through the system,  about 10 years or more. Howeve, a more bold approach, would be to stay in the US and fight for residency based on the ideas and arguments set forth above. 

For more about Sheepherders, see DOL memorandum from 2001:




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