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Why are PERM's Four Questions Different From Passover's? By Roger Algase

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In my three previous posts, I discussed how the US Department of Labor's less than totally attorney - friendly green card PERM Labor Certification electronic filing system had turned my Christmas this year into a not so joyous celebration of a day which I had always enjoyed a child growing up in a Jewish home in New York.

Of course, with my Jewish upbringing, there was an even more important holiday to be celebrated every year, namely Passover, the celebration of the Jewish people's exodus from Egypt and transition from slavery to freedom. As Jewish children everywhere in the world know, one of the most important parts of the Passover ceremony is the reciting of the Four Questions by the youngest child in the house. (When I was growing up, this meant the youngest boy, but times have long since changed, at least in many of the more liberal Jewish families.)

The Four Questions relate to various features of the Passover ceremony and are all based on the introductory question: "Why is this night different from all other nights?"

What does all this have to do with immigration PERM Labor Certification filing? After a PERM case is filed by an attorney, the Department of Labor sends an email questionnaire to the employer which also consists of four questions, known as the four "Sponsorship Questions":

For those who have never participated in an attorney PERM labor certification filing ceremony, these questions are the following:

1) Are you, or do you work for, the employer referenced above?

2) Are you aware that an Application for Permanent Employment Certification was filed on your behalf?

3) Do you have an opening for [title of offered job] in [place of offered job]?

4) Are you sponsoring [name of beneficiary] for this position?"

Only after the employer responds affirmatively to the above questions will the PERM application be processed by the DOL.

While it can be argued that the above questionnaire is merely a formality, and it takes the employer little or no time to email a response to the above questions (assuming that the employer's representative is available to answer within the seven-day deadline - recently a questionnaire came in one of my PERM cases while the employer's representative was in China - but it was answered in time anyway) it is clear that, like the Passover Four Questions, the PERM four questions also have a central theme. In this sense, Passover and PERM are not very different from each other.

But there is a difference nevertheless. The Four Questions of Passover are meant to introduce the uplifting, universal, significance of the Passover celebration - the ideal of freedom, not only for the Jewish people, but for everyone on earth.

But the four questions of the PERM questionnaire all center on a narrow, negative, attitude of certain US Department of Labor officials who are evidently unable to accept the idea that PERM lawyers can actually be trusted to tell the truth and avoid misrepresentation when they state that they are filing applications on behalf of and with the consent of their clients.

The PERM filing process, from the online employer main accounts and attorney sub - accounts, through passwords that need to be frequently changed - the latest DOL regulations now require that this be done every 90 days in order to keep the employer's main account active - to all too easily disabled PIN numbers that delay or prevent filing Labor Certification applications through the electronic PERM system, all reflect a certain DOL distrust of and hostility to lawyers representing employers in these proceedings.

Admittedly, in the past, there have been alleged instances of Labor Certification cases being filed by unscrupulous attorneys or other persons on behalf of fictitious or unsuspecting employers. It is an unfortunate reality that no immigration program (or any other government program) has ever been or ever will be entirely free from the fraudsters and scammers.

But is this a valid reason for putting an anti-attorney agenda, which may have more to do with making it harder to have Labor Certifications approved than preventing misuse of the program, at the center of the entire PERM filing process?

Is this narrow, disparaging view of PERM attorneys consistent with the Sixth Amendment right to counsel?

Is it consistent with the fundamental values of America's legal system, which was based on the same ideal of freedom under the rule of law that the people of Israel were seeking in their escape from arbitrary rule under the Pharaoh?

Is there a connection between the DOL's negative attitude toward attorneys filing PERM cases and the overly harsh and rigid approach that DOL certifying officers (and BALCA, its appeals unit) often takes in adjudicating the merits of labor certification applications prepared by these same attorneys?

With the above four queries, I will conclude the final part of my holiday PERM labor certification filing story.
______________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years.

His practice is primarily focused on H-1B and O-1 professional and skilled worker visas, J-1 trainee visas; and green cards through labor certification (PERM), extraordinary ability (EB-1) and opposite or same sex marriage, among other immigration and citizenship cases.

Roger has helped immigrants from many parts of the world overcome the obstacles of our complex immigration system and achieve their goals of being able to live and work in America. His email contact address is algaselex@gmail.com

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Updated 12-28-2014 at 08:25 PM by ImmigrationLawBlogs

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