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Bloggings: August 15, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

August 14, 2007

Who Signs Form 9089 When Attorney/Preparer Not Available


A PERM application was prepared and filed by previous counsel and it was approved. The Client then fired the previous attorney and hired us for the concurrent I-140 & I-485 application. We will file the case with our G-28, however, the previous attorney sent the 9089 form to client without signing section M. The question is -- who signs Section M in form 9089 as the attorney? My guess is that it should be the previous attorney, since the question is "Who prepared the form?" and she is the one who prepared it.


You stated that the Attorney prepared the form. There are three parties to the PERM case: (1) The Employer, (2) The Alien, and (3) The Preparer. The Preparer need not be the attorney. The Attorney may also act as Agent. (Note that the Attorney only appears in a PERM case as Agent or Preparer and not as Attorney.) Theoretically, the Employer, the Alien or the Preparer, or any combination thereof, might not be available to sign the form. If the Employer is no longer available, and if the actual employment entity has changed, it might be possible to transfer the labor certification and substitute a new Employer. If it is the same entity, then a new, responsible person may sign in lieu of the original. Due to the prohibition on substitution of aliens, it is no longer possible to substitute an Alien. The Form Preparer may no longer be available to sign, as in the current case. In your fact pattern, only the original Preparer may sign. Therefore, the previous attorney should sign as Preparer of the 9089 Form, not you, because you would be certifying (incorrectly) that you prepared the case for filing. It appears that the previous attorney has a contractual and ethical responsibility to sign that Form, even though he is not continuing with the preparation of an I-140 petition. If previous counsel is unwililng to sign, or if he delays unreasonably, you should file the I-140 without the Preparer's signature and provide an explanation to the USCIS Service Center along with your G-28. One of the electronic program's weaknesses is that it requires post-approval signatures, leaving great uncertainty as to how to sign the Form in situations where one of the parties is no longer available.