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Bloggings: May 21, 2008

by Joel Stewart

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

A Curious Glitch!

We encountered a curious glitch on the 9089 form.

Our client was filling out part K (alien's experience), and followed the instructions to leave blank the final date of employment, since he was still working in the position. A problem arose, however, because the client had two jobs at the time, one full-time and one part-time. He properly entered both jobs in "K" and left the final dates blank for both.

He got a denial, stating that he had not filled out the 9089 Form correctly, i.e., he had left the end date for the part-time job blank. Apparently the computer understood that the blank date was properly executed for the first job listed, but not for the second job. Instead, the second job was interpreted as an omission!

Realizing that this was a glitch that resulted in an unjust denial, we filed a Motion to Reconsider for the client on April 24, 2006, and 25 months later, on May 8, 2008, we received the approval!

Despite the promise of prompt, electronic processing, it took DOL more than two years to respond to our MTR, and I won't burden you with the details about the constant stream of reminder letters and e-mails that we sent along the way.

All the while, the clients wonder what is happening to their case. They cannot understand why a Motion to Reconsider should take two years. For the attorney, PERM management becomes Client management!

Well, the point of all this, is that when you are right, you must be persistent and patient. With time, you will win. However there are many practitioners who receive denials for cases that cannot be won. Basically they are the ones where the applications were filed too soon, or too late, or with typographical errors on the form. In those cases a Motion to Reconsider or Appeal to BALCA are for naught!

Don't forget how the MTR and Appeal processes work. You file a Motion to Reconsider, not an appeal, within the 30th day (best to have the response reach DOL on the 30th day). After the CO issues a decision, if it is negative, you then have another 30 days to file the BALCA appeal, still with the CO, not directly to BALCA. The appeal should be received at the CO's office no later than the 30th day.

The processing time is cumulative. In the case described above, it was two years to receive the approval. Had we received a denial, we would have filed an appeal with BALCA. This would have resulted in a delay of about 1.5 years, making a total processing time of 3.5 years for motions and appeals, plus the original processing time which was about six months! This is a grand total of four years!

The conclusion is that Electronic processing (PERM) is not a very democratic process, because it works for some but not for all, and if your case falls between the cracks, fasten your seat belts and get ready for a rough ride ahead!

p.s. The PERM Book II has an elaborate section on final determinations, BALCA review, and federal court litigation!