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Why DOL Should Allow Two Bites At The Apple Under PERM

by Gary Endelman

Why DOL Should Allow Two Bites At the Apple Under PERM

Table of Contents

1. Introduction
2. 15 Reasons Why People Are Worried About PERM
3. The Legal Case For Two Bites To The Apple
    a. What is not included is excluded
    b. PERM as remediation
4. How DOL Benefits From Two Bites To The Apple
5. Appendix - AC21 And PERM


1. Introduction


DOL could help itself and all of us by allowing two bites at the apple under PERM.  Their failure to do that could go far towards sealing PERM’s fate in a way that benefits no one. PERM will only work if lawyers with pending cases are willing to take the risk of seeking a PERM upgrade. They will not do so in large numbers if DOL automatically cancels the prior submission even if the employer does not seek to take advantage of the original filing date. Worse yet, DOL’s refusal to allow the pre-PERM case to survive under these circumstances will not stand when challenged in court, as it doubtless will be. Plagued by constant challenge, PERM will not come close to fulfilling its promise. The backlog will remain, the reputation of DOL will suffer, and the White House will be less likely to entrust the administration of its all-important guest worker program to the gang that couldn’t shoot straight. All of this can be avoided if DOL acts now, while there is still time.


The regulation at issue is as clear as mud: “Filing an application under this part stating the employer’s desire to use the original filing date will be deemed to be a withdrawal of the original application.”[1] This is true even if DOL denies the PERM case. The employer can lose all on one roll of the PERM dice. What happens if the employer does NOT want to use the original filing date? Is the original application withdrawn? We do not know and that lack of certainty is the root cause of the present crisis. Top DOL officials think they know. At the recent mid-year annual meeting of the American Immigration Lawyers Association in Los Cabos, Mexico, William Carlson, Chief of the Division of Foreign Labor Certification, openly proclaimed his intention to cancel any pending case if a PERM application was filed for the same alien beneficiary. On what authority you ask? Ah, that is the question of the moment. 


DOL has cancelled all local and regional liaison efforts with the immigration bar. True enough, it has updated its web site with PERM information. You can read about the transfer of cases to the Backlog Reduction Centers[2] and learn which cases are going where and when. One can glean general knowledge about PERM[3] and, for the visually sensitive among us, even be treated to a DOL power point presentation on PERM.[4] DOL has entered the digital age and it is trying to let its customers know what is going on. Yet, many gnawing doubts remain, questions that DOL can’t or won’t answer, and these reservations are making it very difficult for lawyers who have already filed labor certifications to risk all and take the PERM plunge.



2. 15 Reasons Why People Are Worried About PERM


What are these reservations that keep the bar from embracing PERM?  Here are some of them in no particular ranking of importance:


  1. If the PERM case fails, can my Indian or Chinese client in H1B status still get a 7th year? Now that the EB-2 category for these countries is backlogged to March 1, 2002, with the possibility of further visa retrogression to other countries or categories a real and present danger, this is hardly an idle concern.


  1. While PERM mandates a 4-tiered wage level system, DOL offers no reassurance to lawyers currently preparing PERM cases with recruiting conducted under the present 2-tier system. Moreover, the way in which the prevailing wage is to be defined is changing. Right now, employers can absolutely rely on wages specified by the Davis Bacon and Service Contract Acts; they trump the OES figures. What happens after PERM? Suddenly, OES wages will leap ahead of both Davis Bacon and Service Contract Act data. How is an employer who has already obtained a prevailing wage from his or her SWA on the basis of a wage source that will no longer be recognized after March 28th going to be ready to file under PERM?


3.      PERM requires a job order with your SWA. No job order was required for the pending RIR case. Job orders are highly idiosyncratic with no uniformity from one state to another, or even within the same state. DOL talks about imposing uniformity here, and may well do so in the coming weeks, but it has yet to tell the SWAs how to prepare a PERM-compliant job order.


4.      Companies that one would think would be the largest users of PERM are worried. Why? They are denied a 2-track system that would function much in the manner of the Blanket L program under which the bona fides of the employer and the existence of a real job could be assumed once established and not subject to repeated scrutiny. They are denied the ability to file a labor certification with national validity. They are denied the ability to have occupational shortages judged by verifiable just-in-time statistics. They are denied the ability to avoid labor certification even in high-technology fields by taking advantage of an expanded Schedule A. They are compelled to violate normal document retention policies by having to keep resumes from job applicants, regardless of qualifications or suitability for the job in question, for five years. They are forced to run the risk of inadvertently disclosing confidential company information by having their name in all advertisements. They are forced to get prevailing wage determinations from each state in which they operate. They are denied the ability to be issued a personal identification number by DOL who will only issue one to a specific individual. What happens if that person quits or gets fired? Do they retain their PIN access? What about a large employer that refers large numbers of labor certification cases to many different outside law firms? The question lingers.


5.       Under PERM, the Certifying Officer can revoke an approved labor certification at any time after approval for virtually any reason without having to prove either fraud or the willful misrepresentation of a material fact.


  1. Almost all RIR recruitment, on which the employer has relied and for which he paid a ton of cash, is stale and cannot be used to support a PERM filing.


  1. Regardless of the preliminary comments to the PERM rule, there is the sneaking suspicion that only occupations on Appendix A will be deemed to be professional.


  1. PERM straitjackets employer recruiting. Listen to what Lisa Melton and Roxie Bacon say in a recent survey of what PERM will mean: “The new regulations essentially force an employer to conduct recruitment efforts that will be easiest to track rather than to utilize recruitment efforts that may be more in line with real world recruitment. While companies who are seriously recruiting for US workers often use a variety of sources for recruitment similar to those required by the DOL, for purposes of preparing a PERM application, an employer’s incentive to rely on some of these recruitment sources for the PERM application may be curtailed by the strict retention requirements.” [5]


9.      Will a faster labor certification mean a faster green card? If visa retrogression means an inability to file for adjustment of status, is it worth taking the risk to try PERM? As the noted immigration expert Sheila Murthy sagely notes: “If the case cannot move forward to the I-485 stage for many years anyway, there may be less to be gained in spending the additional money to obtain a faster PERM approval.”[6] PERM may actually make things worse. After PERM, since there will be more labor certifications which means more I-140 petitions and ultimately a longer green card process. If the visa waiting lines grow longer, it will make that old pre-PERM priority date even more precious than it is now. Sheila Murthy explains why not trying PERM might seem the prudent strategy in this uncertain environment:  “Pre-PERM cases have been and will continue to be affected by retrogression as well… Of course, these cases will have priority dates that are earlier than PERM priority dates. Thus, these people will have some potential advantage in a situation where the priority dates have retrogressed…While there may be other reasons to consider converting non-PERM to PERM cases, the assumption that the conversion will mean obtaining the green card faster should not be the sole reason for attempting to convert to PERM. Since there is a risk of losing the original priority date in a re-filing under PERM, the question of whether or not to convert must be carefully considered.” [7]


10.  Is PERM attorney-friendly? The preliminary comments to the PERM rule suggest that this may not be the case. Lawyers, after all, are not really necessary. Just answer the simple yes or no questions on the ETA 9089.  Will employers realize the need to create back-up documentation?  Is DOL creating a climate in which fraud will be not only possible but even preferred? Honest employers who admit that the alien qualifies on the basis of alternate experience, or that the occupational requirements are not normal for the occupation, even if necessary for this specific job, know they are looking at an audit. Dishonest employers will know how to answer and watch their case sail through.  Immigration scholar Cyrus Mehta observes “PERM is also likely to encourage notarios and even unscrupulous attorneys to represent an employer on the cheap, without understanding the true implications of the process. This will not be a victimless crime. ”Once the program is mired with fraud,” Cyrus Mehta predicts, “it is bound to get bogged down. The DOL will be inclined to audit many more applications, which would result in new bottlenecks and backlogs.” [8]


11.  Making sure that the PERM case is identical to the pre-PERM case could well create a logjam within the DOL itself. Trying to retain the original priority date could actually slow things down big-time.  Indeed, DOL has acknowledged such a possibility and pledged to develop the technology to cope with such an eventuality.  Leading immigration advocate Jay Solomon is not reassured. If you look on his excellent website, you will see that Jay advises NOT to request the original filing date. Here’s why: “When the original filing date is requested, the DOL will physically examine the original application. We have been told that this will delay the PERM application-and we have no idea how long it will take the DOL to locate an individual labor certification which has been sent to a backlog reduction center. Delays may be substantial.” [9]


12.  Will PERM be tougher than what we have now? This theory advises employers to sit tight, subject themselves to the tender mercies of backlog reduction and hope that the backlog is so large that DOL may have no choice but to certify it away.


13.  There is no audit under the present system


14.  PERM scraps the Dictionary of Occupational Titles. What will take its place? While the concept of Specific Vocational Preparation (SVP) survives, it does so within the context of the SOC/O*NET codes that are maddeningly vague, to say the least.  Since anything in excess of what these codes allow can only be justified as a matter of business necessity, the lack of clarity over how much experience is “normal”, particularly in SVP scenarios that call for more than 7 (2-4 years of experience) but less than 8 (4-10 years), is not only going to make an audit more likely, but plunge an employer or the unfortunate immigration lawyer into a paralysis of indecision, something not calculated to make them want to use PERM.


  1. Last, but certainly not least, comes the maxim of preferring the Devil you know. Cyrus Mehta said it best:” The old system is a known one…PERM, on the other hand, is new and a big unknown.”[10]


3. The Legal Case For Two Bites To The Apple


PERM can be thought of in one of two ways, either as a regulation designed to regulate conduct that has been identified as problematic or a remedy for the granting of broad relief to those who are in need. All laws can be divided into one of these categories and PERM is no exception.  If PERM is a regulation, it is therefore designed to govern certain relationships in our society by telling us what conduct must be tolerated or proscribed.  Criminal laws, traffic rules, environmental compliance and public utility guidelines are all common examples of this type of statute. On occasion, the law and its implementing regulation present themselves as rights to be exercised or protections to be enjoyed. The Bill of Rights is the most celebrated instance of this genre. By contrast, remedial legislation or administrative regulation attempts to address some problem that the legislature has identified and generate a desired result. Remedies may arrive in many guises, but we are all familiar with the 1965 Voting Rights Act. The point is that, whether PERM is best understood as a regulation or a remedy, either approach lends itself almost ineluctably towards accepting two bites at the apple.


3a. What is not included is excluded

Regulations operate by policing conduct and spawn bodies of law oriented towards enforcement. As a result, they are necessarily construed most narrowly to let everyone know what is, and is not, permitted. To achieve their stated objective, therefore, regulations must be phrased with exquisite precision and clearly delineate the boundaries of their application. What is barred must be easily determinable and, by implication, that which is not specifically proscribed is not barred. That is known in legal parlance as the concept of “expressio unius est exclusio alterius” meaning, for the non-Latin scholars amongst you, the notion that the expression or inclusion of one thing is the exclusion of everything else.[11] As applied to PERM, the limitation of automatic withdrawal under 656.17(d) to that discrete situation where the employer affirmatively seeks to retain the original filing date suggests that automatic withdrawal would not take place if the employer is willing to establish an entirely new priority date through the mechanism of the PERM filing, thus resulting in two bites at the apple. We must assume that this is what DOL intended, that the nuanced phrasing of 656.17 (d) is not accidental. “There is no more persuasive evidence of the purpose of a regulation,” the Supreme Court reminds us, “ than the words by which the Attorney General undertook to give expression to her wishes.”[12]       


The canon of “expressio unius est exclusio alterius” is neither new nor particularly novel. The courts have repeatedly recognized it. At the very dawn of our national life, Chief Justice John Marshall recognized that “affirmative words are often, in their operation,” negative of other objects than those affirmed.”[13] The DOL must abide by the limits of its own rule. Had the Secretary of Labor meant to banish a prior labor certification even where the employer sought no benefit under it after March 28th, she would have said so. For whatever reason, she did not. This means something. Words have consequences:

“When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.”[14]


There is no indication that the invocation of the “expressio unius” canon to allow two bites at the apple under PERM would frustrate the intent of Congress, negate the general purpose of labor certification or produce results so absurd as to cast PERM itself into disrespect.[15] Indeed, to apply this maxim here would be to promote the purposes for which the PERM regulation was promulgated. This is precisely when “expressio unius” can be relied on with greatest confidence. While it may sound arcane, it really is the prosaic expression of what we all know to be true:


        “Although the expressio unius maxim has had widespread legal application, there is

          nothing particularly legal about it. It is a product of logic and common sense. It

          acts merely as an aid to determine legislative intent and does not constitute a rule

          of law. It expresses the learning of common experience that when people say one

          thing, they do not mean something else.” [16]


There is no reason to limit the maxim of “expressio unius” to statutes since it applies with equal relevance and undiminished vigor to an informed appreciation of implementing regulations whose intelligent operation gives the law its life.  This has been recognized by the Board of Immigration Appeals in the specific context of immigration regulations.[17] BALCA has, on more than one occasion, has cited this very canon as a rationale for its decisions. Two different times, BALCA examined whether landscape gardeners could benefit from labor certification for which a full-time job on a year-round basis is necessary. On both occasions, they decided that such work was seasonal or temporary in nature, hence ineligible for more permanent sanction. In coming to such a conclusion, BALCA allowed its reasoning to reflect the influence of “expressio unius”: the decision in Vito Volpe[18] essentially expounded upon the principle of statutory construction followed by Congress of expressio unius est exclusion alterius, in other words, to include one thing implies the exclusion of another.[19] “Congress chose not to reference seasonal or temporary workers in 8 U.S.C. Section 1182(a)(5)(A), which addresses the requirements for permanent labor certification. As was stated in Vito Volpe, Congress did, however, set forth separate requirements for seasonal or temporary workers in 8 U.S.C. Section 1101(a)(15)(H)(i)”.[20]


One must not invoke the power of “expressio unius” lightly nor without due regard for the primacy of the DOL as the agency charged with the administration of the labor certification program by Congress.[21]  Yet, knowing this, we know also that “deference to the (agency’s) interpretation of the immigration laws is only appropriate if Congress’ intent is unclear.” [22] (“We only defer to agency interpretations of statutes that, applying the normal tools of statutory construction are ambiguous.”) The intent of Congress in changing the labor certification scheme from a passive to an active gatekeeper in 1965 was crystal clear- the employer now had the burden to go forward with the filing of the labor certification but the Secretary of Labor always retained the ultimate burden of proof on the core question of whether qualified and willing US workers were available for the job opportunity in question. Congress never intended employers to be subjected to the kind of micromanagement that PERM represents.[23]


Even if we pay homage to DOL’s view that two bites at the apple should not be allowed, we can and should still question whether such an interpretation should be followed. Deference need not be paid when the intent of Congress, as here, cannot be reconciled with the regulation itself. Moreover, since DOL has yet to provide guidance on the issue, other than to indicate anecdotal hostility towards the practice of two bites at the apple, we do not really know why the Department remains so adamantly opposed. Under this circumstance, therefore, the customary degree of deference that must be shown is correspondingly diminished “The weight (accorded to an administrative) judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade if lacking power to control.”[24]


While deference to agency discretion is both necessary and proper in many cases, it is not without limits and such limits, much as the notion of discretion itself, must be both noted and followed where doing so promotes the basic objectives of the law at issue. That is why there is no deference due to an agency’s position in litigation,[25] nor will judicial deference be paid to an agency’s decision unsupported by rational explanation or one that is manifestly contrary to the plain import of the law.[26] Courts must give effect to an agency’s regulation containing a reasonable interpretation of an ambiguous law.[27]  The propriety of two bites at the apple is not a case where Congress has directly spoken on the particular merits of  the precise controversy.  It would unfortunately, but still undoubtedly, be true after Chevron that, since the INA and Congress are silent on the issue, we would have to accept DOL’s answer on what happens to a pre-PERM case where the employer does not seek to retain the original filing date since such a posture, however much we might disagree with it, would rest upon what Chevron calls a “permissible construction of the statute.”[28] The problem is not that we question DOL’s answer but, rather, that it has not given one. While there may indeed be multiple plausible reasons for this omission, we wait anxiously for DOL to tell us what they are [ Ed. changed 5/4/05 ]. Recognizing that “not every silence is pregnant,”[29] and mindful that any attempt to divine meaning from the absence of comment may lead us into dangerously uncharted waters,[30] before it summarily cancels a pre-PERM filing when the employer does not seek to benefit from it, DOL must, at the very least, ground such a draconian banishment on something more than an abiding dislike for the practice.


3b. PERM as remediation

Labor certification is sick and the patient has been ill for a long, long time. If you listen closely, you can hear the death rattle in the silence of the PERM regulations themselves. The backlog now stretches into the hundreds of thousands of cases and who among us has high hopes for this to come down in any appreciable measure through the tender mercies of backlog reduction? The imminent collapse of the labor certification system is a national concern of the first rank. Employers cannot plan, workers fear they will lose their jobs, children “age out” by turning 21, US workers grow ever more restless and DOL does not know where to turn.  PERM is the labor certification’s last best and only hope. If it fails, the system goes down and we all lose.


Seen in this light, PERM is not just a regulation, but, rather,  an emergency rescue that must be broadly construed and generously administered to achieve its remedial objectives.  Does a sustaining logic to support two bites at the apple still exist? Clearly, the “expressio unius” maxim has no role here. What then?  Any interpretation of PERM must consequently be animated by the “familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes.”[31] (Child Status Protection Act is remedial and should be given an expansive reading). It is well settled that remedial legislation should be construed liberally rather than technically.[32] Much like the Supreme Court construed the Securities and Exchange Act in a manner designed to protect investors, the market and the public generally,[33] or interpreted the Federal Food, Drug & Cosmetic Act to give the Food and Drug Administration the authority over the sale of medicated animal feed,[34] the restorative capacity of PERM to save the labor certification system from utter collapse will be enhanced by a humane and generous approach to the controversy over allowing two bites at the apple.


The fact that PERM has anti-fraud features built into it does not detract from its remedial character in the slightest. As Mr. Justice Story wrote, a law that is “enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good are not, in the strict sense, penal acts although they may inflict a penalty for violating them.”[35] The DOL is rightly concerned that PERM may lead to fraud; indeed, we have all heard the rumors of the notarios lining up to file bogus claims. It is also true that the DOL is caught between the immigration bar clamoring for two bites at the apple and those on the other side of the aisle who see the whole issue through the narrow prism of enforcement in which any concession is but a prelude to wholesale chicanery. It is not possible to examine the instant dispute without a passing mention of the companion controversy surrounding the substitution of aliens into approved labor certifications.


As the comments to the PERM rule indicate, DOL remains adamantly against this practice, despite being forced by the courts to accede to it after the ruling by the US Circuit Court of Appeals for the District of Columbia in Kooritsky v. Reich. [36] [37] Indeed, even then, the DOL denounced the reputed secondary market in the sale of labor certifications that had sprung up.[38] It is no small exaggeration to say that the DOL’s hard line resistance to two bites at the apple under PERM derives, in large part, from the abuse of the substitution principle, real or imagined. If DOL winds up sticking to its guns on this question, we will have Samuel Kooritsky to thank. This is an excellent illustration of the wider truth so often found in immigration where a temporary triumph on a minor matter ultimately winds up causing a much larger and more enduring problem down the road. In a system where a holistic view is rarely evident, where neither the regulators nor those they seek to control look beyond or behind the crisis du jour, this is hardly surprising.


It may well be that DOL will automatically cancel any pending case where there is a subsequent PERM filing for the same alien. Their depth of feeling may be of such intensity that it cannot be contained by the authority granted to the DOL under the current regulations under 20 CFR 656 or the PERM rule itself. That being said, it must also be noted, as Joel Stewart reminds us in his forthcoming book[39], that there is no provision in either body of regulations for such an arbitrary and capricious exercise of power.  Nothing in any DOL regulation would support it; indeed, nothing in any DOL regulation would provide the procedural mechanism by which it could be done. Joel Stewart correctly notes that, before PERM, the Certifying Officer can only issue a remand or  notice of findings. After PERM, the Certifying Officer can issue an audit letter, order supervised recruitment and either approve or deny. In both instances, there must be some violation of the regulations, some invalid practice that they prohibit which the offending employer is unwilling or unable to cease or correct. One will search in vain, now or later, for any regulatory offense that relates to the attempt to have two bites at the apple. This will be a contrived punishment for an imaginary offense. It is fundamentally flawed, wrong both in purpose and intent, and it will not stand.  DOL must act in accordance with the procedures and protections contained in and given expression by the Administrative Procedures Act (APA).[40]  For those who have forgotten, the decision on labor certification is a determination made under the APA.[41] The APA provides that “except as otherwise provided by statute, the proponent of a rule or order has the burden of proof.”[42]

Any employer whose pre-PERM case was dismissed without opportunity for notice or comment in opposition to such an act would be manifestly entitled to judicial review as means of redress.[43]


Nothing in 20 CFR 656 prohibits duplicate filings but DOL still forces employers to have only one certification for one job. This despite the existence of contrary guidance to the field as articulated by Barbara Ann Farmer, Administrator for Regional Management

(but now retired)[44] which says, in pertinent part, that an employer “is not prohibited from filing applications for more than one applicant involving different, legitimate job openings, to which US workers may be referred, for the same alien.” However, it would be intolerable to be left with two usable labor certifications when the employer has just one usable job opening. Rightly concerned about fraud and the sale of labor certifications, DOL would never, and has never, permitted this result, nor should they.  That is precisely why the the Farmer Memorandum concludes by reminding all that “the Certifying Officer must determine that two different bona fide job openings existed before the application could be certified.”[45]


4. How DOL Benefits From Two Bites To The Apple


Right now, in the run up to March 28th, DOL management must be asking itself one simple question about the backlog and how many in it will choose PERM: If we build it, will they come? They have fundamentally miscalculated the nature of the backlog. All along, DOL planners have assumed that they were in a seller’s market, that the current situation had deteriorated to such an abysmal depth that lawyers and employers would do anything to get out of it. So, there was no need to provide a comfort level, no need to offer a safety net or provide clear and specific guidance on what happened if they took a chance.  They may have guessed wrong. After March 28th, there is no choice but even here chaos and confusion will inevitably lead to challenge and delay, both in court and in Congress. Those who have already filed need an inducement beyond the promise of quick approval to do so and DOL has yet to offer one. Allowing two bites at the apple would be precisely what the doctor ordered to quiet the skeptics, confound the critics and motivate those on the sidelines to get into the game. That is the best, perhaps the only way, for there to be a massive use of PERM by those with pending cases. There is no way that the Backlog Reduction Centers by themselves, with funding for only two years and a small staff, that is composed largely of contractors without a firm grounding in labor certification law or lore, can ever hope to do the job. PERM must eat up a large slice of these pending cases and that will not happen unless and until DOL allows two bites at the apple. No honest employer or lawyer should hesitate to make an election between a PERM and pre-PERM case if one was certified. That is the time to choose.


If DOL does not bend, PERM will break and, when it does, DOL will not only lose its last, best hope to save labor certification but much, much more. Right now, the Bush Administration is putting the final touches on the only immigration legislation it really cares about, the centerpiece of its entire immigration policy, namely the President’s guest worker program. It does not take a rocket scientist to figure out that,  among all the possible federal agencies, DOL would be a logical choice to run the attestation and audit program that the guest worker initiative will likely use to bring a willing worker together with an interested employer. If PERM goes down, so will DOL’s prospects to be a leading player in the administration of the guest worker plan. More than PERM itself, DOL will lose the chance to do something really big if it does not allow two bites at the apple now.  That is why we would urge our friends at DOL in the strongest possible terms to remember what is really important both to them and to the American workers they properly represent.  For those at DOL who believe this is not necessary, that they can bend the whirlwind to their own desires, that their long-term institutional self-interest requires neither flexibility nor second thoughts on the allowance of two bites at the apple under PERM, we would submit that, in the evening of their memory, they remember what Oscar Wilde wrote in An Ideal Husband: “ When the gods wish to punish us, they answer our prayers.”



5. Appendix – AC21 And PERM


There is a direct conflict between PERM and the concept of adjustment of status portability as provided for in Section 106(c) of the American Competitiveness in the 21st Century Act. [46] 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. Efren Hernandez 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.[47] Subsequently, William Yates 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.[48] 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.”[49] It is true, as immigration attorney Adam Rosen has correctly noted, that AC 21 amended Section 212(a)(5)(A) of the Immigration and Nationality Act to provide a new subsection (iv) which states that a labor certification for a long-delayed adjustment of status applicant who ports under Section 204(j) of the INA “shall remain valid with respect to a new job accepted by the individual if the new job is in the same or similar occupational classification as the job for which certification was issued.” Now, this is very curious. On one level, the conflict between PERM and adjustment portability would seem to be solved. After all, it is black letter law that a statute always trumps a regulation. Yet, one wonders. Does this really prevent a Certifying Officer from revoking the valid labor certification? Indeed, if the certification was no longer valid, there would be nothing left to revoke. Beyond that, are we not witnessing something far more ominous, the creation, in effect, of two classes of labor certifications? Does this subsection (iv) not put in place a preferred and protected class of labor certification which is immune from revocation and, at the same time, a disfavored and endangered subordinate class of certification where the alien has not invoked the benefits of adjustment portability? It would seem that a travellin’ man can rest easy while his less adventuresome compatriot who has remained with the same employer in the same job must always look over his shoulder. It is manifestly unjust, and of dubious legality, for only the alien who has invoked Section 106(c) not to worry about PERM revocation, while all others must always stand in fear.

[1] 20 CFR 656.17(d)

[2]US Department of Labor, Employment and Training Administration, Case Status at

[3] US Department of Labor, Employment and Training Administration, Foreign Labor Certification at 

[4] Ibid.

[5] “PERM: An Introduction,” by Lori S. Melton and Roxanna C. Bacon.

[6]MurthyBulletin, VOL. XI, no. 07; February 2005.

[7] Ibid.

[8] Re-Filing under PERM,” by Cyrus Mehta and Elizabeth T. Reichard.,0224-mehta.shtm

[9]“Old Cases” by Jay Solomon.

[10]  Supra, note 2.

[11] See Black’s Law Dictionary 581 (6th ed. 1990).

[12] Perry v. Commerce Loan Co., 383 U.S. 392,400(1966).

[13] Marbury v. Madison,  5 U.S. 137, 174(1803).

[14] Botany Worsted Mills v. United States,  278 U.S. 282, 289( 1929).

[15] See, e.g., Public Citizen v. Department of Justice, 491 U.S. 440 (1989); Silver v. New York Stock Exchange, 373 U.S. 341, 357(1969) quoted in Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n. 23(1983).

[16] 2A  Norman J. Singer, Sutherland Stat.Const. Section 47.24( 5th ed. 1992).

[17] See, e.g., In re Artigas, 23 I& N Dec. 99 (BIA 2001); Matter of Mastri, 22 I& N Dec. 1145(BIA 1999); Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994).

[18] In re Vito Volpe, 1991-INA-300 (Sept.29, 1994)(en banc)

[19]Russello v. U.S., 464 U.S. 16,23 (1983).

[20] Quoted from In re Mejia- Naranjo, 2001-INA-121 (BALCA 2004). 2004 BALCA Lexis 29.

[21] U.S. INS v. Federal Labor Relations Authority, 4 F. 3d 268 (4th Cir. 1993).

[22] Socop-Gonzales v. INS,  272 F.3d 1176,1187 (9th Cir. 2001)(en banc) ( citing Chevron USA v. Natural Resources Defense Council Inc., 467 U.S. 837,842(1984). See also INS v. Cardoza- Fonseca, 480 U.S. 421, 446 (1987); INS v. St.Cyr, 533 U.S. 289, 320 n.45 (2001)

[23] G. Endelman, The Lawyer’s Guide to Section 212(a)(5)(a): Labor Certification From 1952 to PERM, 81 Interpreter Releases Nos.88-89 ( October 4th and 11th 2004).

[24] United States v. Mead, 533 U.S. 218,228(2001) quoting Skidmore v. Swift & Co., 323 U.S. 134, 140(1944).

[25] Bowen v. Georgetown Univ. Hosp.,  488 U.S. 204, 212-213 (1988)

[26] Beltran-Tirado v. INS, 213 F.3d 1179, 1185 (9th Cir. 2000).

[27] Chevron USA Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 842-844 (1984).

[28] Supra, note 22 at  842.

[29] Illinois Dep’t of Public Aid v Schweiker, 707 F.2d 273,277( 7th Cir. 1983)

[30] Cass Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071,2120 n.182 (1990)

[31] Olpin v. Ideal Nat’l Ins.Co. 419 F. 2d 1250,1258(10th Cir. 1969) quoting Securities and Exchange Comm’n v. Variable Annuity Life Ins. Co. of America,359 U.S. 65, 69(1959). See also Padash v. INS, 358 F.3d 1161( 9th Cir. 2004)

[32] Zipes v. Trans World Airlines Inc., 455 U.S. 385, 397 (1982).

[33] Tcherepnin v. Knight, 389 U.S. 332, 367(1967)

[34] Int’l Nutrition v. United States Dep’t of Health, 676 F.2d 338, 341 (8th Cir. 1982)

[35] Taylor et. Al. v. United States, 3 How. 197, 11 L.Ed. 559 (1845)

[36] Kooritsky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994).

[37] See also Medellin v. Bustos, 854 F.2d 795 (5th Cir. 1988).

[38] Id  at 1512.

[40] Administrative Procedures Act (APA), 5 USCA Section 551(b)(1966).

[41] Singhal, “Labor Certification under Revised Regulations,”  51 S.Cal. L. Rev. 823,827 (1978).

[42] Supra, note 40.

[43] See Yong and Bergen-Paterson Pipesupport Corp., v. Dep’t of Labor, 509 F.2d 243 (9th Cir.1975); Ratnayake v. Mack,  499 F.2d 1207-1209-1210 ( 8th Cir. 1974); Reddy Inc. v. Dep’t of Labor, 492 F.2d 538,542-44 (5th Cir. 1974); Secretary of Labor v. Farino, 490 F.2d 885, 888-89 (7th Cir. 1973). See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410-13 (1971).

[44]Field Memorandum No. 48-94 issued on May 16,1994

[45] See Farmer Memorandum at point no. 6 on page 2.

[46] Section 106 (c) of the American Competitiveness in the 21st Century Act , now codified at Section 204(j) of the Immigration and Nationality Act.

[47]Efren Hernandez, INS Director of Business and Trade Services,  letter to Denver immigration lawyer Emily Curray (April 24, 2002)

[48]William Yates, USCIS Acting Associate Director for Operations memorandum to Service Center and Regional Directors (August 4, 2003)

[49] “A Moveable Feast: An Analysis of Adjustment of Status Portability under AC 21" by Angelo and Janet J. Lee.

Author's Note: Special thanks to George Newman, the true spirit of St. Louis. His wit, wisdom and generous friendship have made this essay possible.

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.