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Joel Stewart on PERM Labor Certification

File I-140 within 180 Days After PERM Approval

Rating: 5 votes, 5.00 average.

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!


Happy Filing!

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Comments

  1. mark kalish's Avatar
    this is very helpful...we need every advantage we can get
    Muchas Gracias, Joel

    Mark Kalish
  2. Grace's Avatar
    Helpful reminders, but I'd also note that calculating the 180 days does not require any calculation at all - the certified ETA 9089 shows the validity dates at the bottom of every page of the form. (i.e., 1/4/2010 to 7/3/2010.)

    The limited validity of the PERM approval makes filing PERM forms electronically - as opposed to by mail - critical. Once a PERM has been certified, the certified status shows in the online case status, and it is possible to print out a copy of the certified ETA 9089. When a PERM approval has been lost in the mail, I have filed an I-140 using the copy from the DOL website. In contrast, if a PERM is filed with DOL by mail, there is no way to get a copy of the certified ETA 9089 if it is lost, and no way to monitor the status of the pending case. While most attorneys file electronically, DOL has reported that they still get about 5%-10% of PERM cases through the mail.
  3. Chandra's Avatar
    I 140 EB2 filed within the time period stipulated. However, I 140 got rejected. In the meanwhile, 6 month labor period got expried. Can one file I 140 under EB3 using old labor?
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