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Joel Stewart on PERM Labor Certification

PERM Approval: Anatomy of a Failed Case

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I was asked to review a file this weekend. The application was made for a specialty cook, and the PERM application was approved. The problem arose when the I-140 was filed.

As most attorneys know, a PERM approval is not worth anything, unless the I-140 Petition can be approved by USCIS. 

In this case, the employer consulted its own attorney, not the alien's attorney, to go forward with a PERM application. This is correct, according to the PERM Rule, since the alien's attorney cannot represent an employer in a PERM proceeding.

The problem is that the Employer's attorney did not look beyond the PERM case to the I-140 petition. When the time came to file the petition, the Employer did not provide the required corporate income tax records. Furthermore, the alien's experience was incomplete on the PERM Form.

It has often said that the same person who prepares a PERM application should also prepare the I-140 petition, because the information on the PERM form has to include some of the same information that is required for the I-140. 

In this case, the Employer's attorney did not take into consideration that the Employer was not doing well financially and had no funds available to pay the wages offered in the PERM application. The ability to pay the wages is a very technical legal and accounting issue that few people understand. 

Shortly after the PERM approval, the Employer filed the I-140 petition, but then sold the business, and the next employer (successor in interest) took over the process. 

When USCIS remanded to request financial information, the first employer was no longer in business and no longer available to provide the documentation requested

The same attorney who represented the first employer then represented the alien and the second employer in the preparation of the I-140 immigrant visa petition. 

However, as the first employer was unavailable, the second employer was unable to obtain an approval of a new I-140 petition, and it was denied for the same reasons that the first petition was denied.

I asked the alien if he had spoken to the first Employer's attorney at the time that the PERM case was being prepared, and he said that he had not. Only the employer had spoken to the attorney. Moreover, the first Employer had no knowledge or interest in the procedure to obtain approval of the I-140, since he assumed that the alien would hire the attorney to prepare the I-140. 

Now that the alien has been denied the I-140, plus adjustment of status, a Notice to Appear has been issued, and removal will certainly ensue.

I was asked to give an opinion whether a third I-140 may be filed, by the second employer, with any chance of success?

The answer lies partly in the willingness of the first employer to provide documentation from the relevant years when the PERM case was filed, prior to the time when the business was sold.

PERM cases have to be filed with an I-140 Petition within 180 days of approval, however, once filed, new I-140 petitions may be filed, as many as you wish, with additional information, documentation and arguments.

Given that 3rd preference petitions are currently backlogged seven years, the earlier priority date from the acceptance of processing of the PERM case will be used.

The documentation required could be very difficult to obtain -- past tax returns, quarterly returns (941), W-2's or 1099's, bank records showing deposits, canceled checks, affidavits, receivables, value of property owned by the employer, net worth, etc. 

Cases like these require a great deal of hard work, and most clients and their employers are unwilling or unable to invest the time and laborious effort to bring about a positive result.

Nevertheless, when there is sufficient interest to win a case, it may be done.

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