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Joel Stewart on PERM Labor Certification

Revocation of PERM and/or I-140

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A PERM case can be revoked for almost any reason. Most people think that it should be revoked only for fraud, while this was true for labor certifications filed before PERM (March 28, 2005), under the PERM Rule, an approved labor certification can be revoked for a simple error.

This may happen when an Employer makes a mistake on a PERM form, and the mistake is discovered later.

One mistake that I see in cases that I am asked to review is an error in the experience of the alien. If the PERM Form states that the job requires years of experience, say, 4 years experience, and the alien's information on the Form also shows four years experience, the alien would be considered qualified for the job.

After the PERM form is approved, the Employer must obtain letters or affidavits to document the alien's experience and provide this to the DHS along with the I-140 Immigrant Visa Petition.

In some cases, the information on the form and the letters are in error with respect to the dates. I have seen cases where alien was supposed to have worked abroad during a four year period, but the alien arrived in the U.S. during the fourth year, and did not complete four full years of experience claimed on the PERM form.

At first glance it may appear that the error was intentional. If so, this would be construed as fraud. However, in many cases, the mistake is not fraudulent. If the alien had four years experience, but the dates are wrong on the PERM Form and even on the letters of experience, this is an error which is not material or fraudulent.

A material error is one which would disqualify the alien completely. For example, if the alien only had three years experience, and the application for PERM states four years experience, this would be a material error, because the alien is in fact unqualified for failure to possess four years experience.

However, if the alien possesses four years experience or more, and the dates are wrong on the form, this may be an error due to miscommunication or clerical error. The alien may in fact have four years experience, but only the dates on the Form and the experience letters are wrong.

If the error was deliberate, it would rise to the level of fraud or willful misrepresentation, with civil law consequences, such as invalidation or revocation of the application or petition. However, if the error was not deliberate, it could still result in invalidation or revocation.

If an immigrant visa petition is revoked for such an error (non-intentional), the Employer can file a new immigant visa petition with the corrected information.

However, if the PERM form has the wrong information, unless the error is minuscule, the PERM application would probably have to be refiled. PERM forms are not supposed to be approved unless they are completely correct. However, the Board of Alien Labor Certification Appeals has stated that a "Zero" tolerance policy may not be supportable, depending on the circumstances of the error.

Petitions and applications may be used for tangential reasons. For example, the grandfathering provision under 245-i (applications and petitions filed by April 30, 2001) would not apply if they were ultimately denied for fraud, but if they were revoked for simple non-material error, the application could argue that he or she is still grandfathered and qualified to reapply with a new application.             

In summary, both a PERM case and an I-140 Immigrant Visa Petition may be revoked for a material error. Whether a non-material error can support a revocation or invalidation may depend on the type of error made. Even if the application or petition is revoked, a new application or petition may be refiled with the corrected information.

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