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Can't We All Just Learn To Get Along? PERM And The Threat to AC 21 Portability

by Gary Endelman

Gary Endelman There is a direct conflict between the concept of adjustment of status portability in the American Competitiveness for the 21st Century Act (AC 21) and the open-ended capacity of a Certifying Officer to revoke a labor certification for virtually any reason at any time under PERM. How this conflict ends will go far to determine the future of employment-based immigration and the utility of both PERM and AC 21.

Section 106(c) of AC 21 provides that an adjustment application survives after 180 days if the alien changes jobs or employers so long as the new job remains in the same or similar occupational classification. In an April 24, 2002 letter to Denver immigration lawyer Emily Curray, Efren Hernandez, INS Director of Business and Trade Services, opined that revocation of I-140 approval by the INS after 180 days would not prevent the alien from moving on to a new job with a new employer as an adjustment applicant. Subsequently, in an August 4, 2003 memorandum to Service Center and Regional Directors, William Yates, USCIS Acting Associate Director for Operations, reinforced this same interpretation by mandating that withdrawal of an approved I-140 petition after an I-485 adjustment had remained unadjudicated for 180 days would have zero effect on the continued viability of that I-140 as the underlying basis for attainment of lawful permanent resident status. Clearly, it is the stated position of the USCIS that the employer who files an I-140, or a labor certification, has no continuing role to play once the magic 180 day mark has been reached; at that point, the I-140 and the labor certification belong to the alien, although the theory of cell mitosis, as advanced by noted immigration scholar Angelo Paparelli, provides a basis for arguing that both the employer and the alien can make use of the labor certification for their own purposes.

PERM has no such statute of limitations. If the Certifying Officer decides at any time after approval that certification of the job opportunity was not justified, even in the absence of fraud or willful misrepresentation of a material fact, a notice of intent to revoke is sent to the employer who filed the ETA 9089. What if the alien has taken advantage of AC 21 adjustment of status portability ? The alien is not notified, even if the adjustment of status has been on file for 180 days; the new employer for whom the alien is now working is not notified even if that employer has a significant interest in the outcome. Since any determination made by the Certifying Officer must be consonant with the protections afforded by the Administrative Procedure Act, why is notice given to the least interested party, one that AC 21 now discounts, while being denied to the most directly interested parties who clearly have the most to lose? Only the old employer for whom the alien no longer works gets to answer. Now, it is possible that this may be an ethical employer who wants to do the right thing. It is possible that the employer cares about its reputation. It is possible that the employer may not want a revocation to prejudice the prospects for future labor certification. All these entirely plausible reasons may prompt such an employer to resist revocation. However, it is just as likely that this old employer may be angry at the alien who has found greener pastures with a competitor and not contest revocation of the labor certification. Then what?

There is no authority under present regulations for a Certifying Officer to revoke an approved labor certification. If America is truly the land of second chances, right now the CO does not get one. It would be hard to deny that the CO should have the authority to correct patent errors or obvious mistakes. It would be equally wrong to deny the fact that an attestation system where the DOL must make a decision based solely on the word of the employer, where there is no opportunity ahead of time to examine the recruitment, enhances the ability of the unscrupulous to benefit from fraud. We all know this to be true. We all know that DOL is not going to audit most PERM cases. If they did, the system would stop. Yet, at the same time, it is equally true that the purpose of labor certification is to prepare the way for the green card. It is part of a wider process and the administration of any labor market control system has to serve this larger objective. If the USCIS says that it does not matter if an employer withdraws an approved I-140 once an unadjudicated adjustment of status case has been on file for 180 days, if it does not matter should the USCIS revoke an approved I-140 then, what possible purpose can be served by the Certifying Officer revoking a labor certification?

An unfettered right of revocation by the Certifying Officer conflicts with the concept of adjustment portability under Section 106(c) of AC 21. Moreover, once an unadjudicated adjustment has been pending for 180 days,at that point, even if the CO does act, it does not achieve its desired purpose. Who is hurt by this? The old employer who probably does not care? The alien who can still adjust his or her status? Fraud is not deterred when revocation or withdrawal of the I-140 is of no consequence. Revocation of the labor certification once the threshold of adjustment portability has been crossed serves only to correct what the CO regards as a bad decision, but nothing more than that. Can there be louder testimony to the futility of revocation? While the DOL needs to be able to prevent those who commit malfeasance from profiting by their mendacity, a decent respect for the opinion of their sister federal agency would suggest adoption of the same 180 day deadline as the outer limit for labor certification revocation. If there is trouble in Dodge City, Marshall Dillon ought to be able to clean it up by then. As the Good Book says, can't we all just learn to get along?

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.