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Joel Stewart on PERM Labor Certification

PERM Approval Not Signed!

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An attorney contacted me regarding an I-140 Immigrant Visa Petition filed with the USCIS Service Center. The attorney had attached all the usual documents required for a petition but had forgotten to obtain signatures of the Employer and Alien on the approved PERM Form 9089.

The PERM Rule requires all approved PERM Forms to be submitted with an I-140 petition to USCIS no later than 180 days after approval, and additionally requires that the PERM form be signed by the parties as soon as possible after approval.

As the attorney sent the petition in timely manner (less than 180 days), but without the signatures on the PERM Form, the Service Center rejected the Petition and returned it to the Attorney with a boiler plate, unsigned statement, along with the filing fee, requesting the Employer to resubmit  the petition again with the signatures.

In the interim, more than 180 days had passed, and it was no longer possible to submit the petition within 180 days of approval of the PERM case.

While at first glance it appears that the Perm Form may no longer be filed with USCIS because the Employer had missed the deadline, I told the attorney that the I-140 in fact was properly filed and that the rejection from USCIS was unlawful. In this case, the I-140 could be refiled, as an amended petition with a request for adjudication.

The Employer's principal argument would be that the private contractor that receives the mail must accept any petition received by mail if it is "properly filed." This is a term of art that simply means that the petition was signed and accompanied by the filing fee. There is ample authority for this interpretation of the phrase "properly filed" going back many years.

Naturally, there are petitions that are not properly filed in the common sense of the word, i.e., there are documents missing which would make it impossible for the Service to approve the petition. However, these cases, instead of being rejected by the private contractor that works for the Service, should be adjudicated, and a determination should be made by a competent examiner regarding deficiencies.

The examiner may than deny the petition, for lack of documentation, issue an RFE requesting the documents, or issue a Notice of Intent to Deny.

In this case, the petition was "properly filed" under the legal meaning of the word, but not properly filed in the normal sense of the word.

The Service should honor the timely date of filing, and accept a new petition as an amended petition, which recaptures the original filing date.

As a practical matter, instead of sending the amended petition back to the mailroom where it would probably be rejected again, this time for being filed beyond the 180 day eriod, the petitioner should file the I-140 electronically. The electronic filing generates a receipt as proof of filing, and the payment is made by credit card. The Employer then is required to submit the supporting documents by mail.

And, yes, the electronic filing, if made within the 180 days, preserves the filing date, withou the PERM Form, without any signatures, and without any supporting documents.

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