Joel Stewart on PERM Labor Certification
File I-140 within 180 Days After PERM Approval
The PERM regulation requires that an I-140 petition for an approved PERM case be filed within 180 days after approval of the labor certification.
The 180 days can pass very quickly, and many unwary employers and/or attorneys find themselves with little time to file the petition and even miss the deadline.
If an I-140 petition is not filed in 180 days, the PERM certification is no longer considered to be valid and will be rejected by USCIS.
There are some exceptions. Recently a case arose where the attorney had filed the petition on the 183rd day. The petition was denied by USCIS. However, the employer, attorney and the Service were not aware of the fact that if the 180th day falls on a Saturday, Sunday or national Holiday, the time period is extended. Although this is not clearly stated in the PERM regulation, it is a provision of the Administrative Procedure Act, which applies to the Department of Labor. Thus, the petition filed on a Tuesday, 183 days after the approval of the PERM application had actually been properly filed and should not have been rejected.
The PERM application may also be refiled, anytime in the future, provided that the first filing was timely. This enables the Employer to refile an I-140 petition, if the first petition was denied. One problem in filing a new petition is that the USCIS mailroom may reject the petition, if they think that it is simply a late filing, or if they perceive that the original PERM approval is not included with the petition.
Obviously, if the original was already filed, and the employer is filing a second or subsequent petition, based on the original, then a copy of the original is appropriate.
To obviate the problem of a refusal by the USCIS mailroom, the Employer should file the I-140 electronically and then submit the documentation to support the petition within seven days as stipulated in the electronic filing instructions.
If the USCIS remands the petition requiring the Employer to submit the original, the Employer should quote the PERM regulation, which stipulates that the Service may request a copy of the PERM approval from DOL.
The Employer, as a precautionary measure, may file a request for a copy of the original I-140 and PERM approval information under the Freedom of Information Act, to prove that it was properly filed the first time around.
Why would an Employer or attorney miss the 180 day deadline? This could occur if the Employer believes that the 180 days is measured as six months from the approval date.
Are you still counting days on your fingers? Use a program like www.timeanddate.com. You should check (and double check) all due dates using a program like this.
For example, if the PERM application was approved on June 15th, 2009, the 180th day is not December 15th, 2009, as it might appear by looking at a calendar, but December 12, 2009. Thus, an unwary petitioner, filing the petition on December 15th, 2009, would be 3 days late, and the petition would be denied.
Unless, the 180th day falls on a Saturday, Sunday or Holiday!