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Bloggings: January 30, 2008

by Joel Stewart

January 28, 2008

Filing Labor Certs the Second Time Around

I always wondered why labor certifications were valid indefinitely. Under the pre-PERM rule, once approved, you could use it any time, even more than once (if the alien ported to a new employer). I always thought it was strange that labor certifications could be used anytime in the future, since so much attention was paid to the prevailing wage. Assuming that prevailing wages are always going up (at least in the long term), an employer would only have to pay the wage stipulated in the approved labor certification.

Now, under the Substitution Rule that came into effect during the summer of 2007, labor certifications must be filed within 180 days. We find that this is a difficult task. The I-40 petitions require proof of the alien's qualifications and the employer's financial ability to pay the wages. Most employers rely on their accountants, who are notoriously slow to respond, and even employers who keep good financial records internally have difficulty producing complete income tax returns, 941's or other documents when needed. Some of the employers have requested extensions, or even multiple extensions, from the IRS, and they just do not have adequate documentation at their fingertips. Others have unusual circumstances that need to be explained. One that I remember was a restaurant that showed a big loss, but this was due to the fact that they invested in a new, free-standing building. There are many variations on this theme, i.e., how to explain losses, but they all require a lot of digging and time to complete.

Documentation of the alien's requirements may also be difficult in 180 days. If the documentation is coming from abroad, many schools, colleges or universities do not have records readily available. Everything takes time. Recently we had a remand on an I-140 to prove secondary school, but the alien's school was closed many years ago. This was a UK case, and we had to go through hoops to get documentation that would pass muster.

We must bear in mind that USCIS has also changed several policies. First, in the past, a properly filed application or petition was one that was signed and had a filing fee. It was not necessary to provide complete documentation or even any documentation to meet the filing date requirements. Now that is all changed. A properly filed application or petition is now one that has the supporting documents described in the USCIS instructions. Under this interpretation, an I-130 without the photo of both spouses could be rejected as improperly filed, and a labor certification without documentation of employer finances or alien qualifications could suffer the same fate.

Secondly, USCIS no longer is required to remand for missing documents. Under current guidelines, the examiners may use discretion and deny applications filed with partial or inadequate documentation.

What happenes to a labor certification that was filed within 180 days ago, but whose petition was withdrawn or denied? It continues to be available for future filings. The Adjudicator's Field Manual (INS Operating Instructions) has been updated to clarify that I-140 petitions may be filed again (refiled) in cases where a petition and labor certification were originally filed within the 180 day validity period.

The main problem is getting the second or third I-140 past the mailroom with only a photocopy of the original labor certification. The Service Centers have instructions on how to deal with special problems. Details may be available on the Service Center sites or in liaison meeting minutes and official agency memos, however, not all situations are explained. My guess is that the I-140 should be placed inside several envelops like a Russian-Ukranian Matushka Doll. We use 3-4 envelopes, each one small than the first, and each one carrying warnings. The idea is that the mailroom will get the idea that the petition is fileable even though the original labor certification is not provided.

Who cares? Many filings are time sensitive, not because the 180 days has expired for the labor certification, but because aliens are applying for adjustment of status or other benefits that are time sensitive. In case of rejection by the mailroom, an alien may remain beyond the 180 unlawful status deadline or a child may ageout.

Employers must consider, in the event that a refilng is required, whether to withdraw a faltering petition or let the petition be denied, prior to refiling. There are consequences for both, and I will write about this in a future blog.