It is good to be reminded that PERM is only used for 2nd and 3rd preference I-140 petitions, and not for 1st, 4th or 5th preference.
A problem I have seen more than once is that the preparer (attorney, paralegal, secretary or other) checks the wrong box on the I-140 Form. this can occur from ignorance or as the result of a typographical error.
Form I-140 is used for diverse types of employment based petition. The Form states, "This petition is being filed for: (Check only one box)
a. An alien of extraordinary ability. Does not require a PERM form.
b. An outstanding professor or researcher. Does not require a PERM form.
c. A multinational executive or manager. Does not require a PERM form.
d. A member of the professions holding an advanced degree or an alien of exceptional ability (who is NOT seeking a National Interest Waiver). Requires an approved PERM form.
e. A professional (at a minimum, possessing a bachelor's degree or a foreign degree equivalent to a U.S. bachelor's degree). Requires an approved PERM form.
f. A skilled worker (requiring at least two years of specialized training or experience). Requires an approved PERM form.
g. Any other worker (requiring less than two years of training or experience). Requires an approved PERM form.
i. An alien applying for a National Interest Waiver (who IS a member of the professions holding an advanced degree or an alien of exceptional ability). Does not equire an approved PERM form. [Editor's note: Typo corrected on 06/22/2010]
In the most recent case that came to my attention, the Employer meant to check box "i" but checked box "a" by mistake.
As a result, the I-140 received an RFE requesting documentation of eligibility for an alien of extraordinary ability.
At this point, the Employer perceived that the wrong box had been checked and explained that in the response to the remand, however the DHS will no longer permit an Employer to change the type of petition in the response to an RFE.
Instead, the Employer must file a new petition, called "Amended Petition." This permits a new petition to be filed without the original approved PERM case.
In the instant case, the I-140 was ultimately denied, and the alien is in deportation proceedings. A new I-140 can be filed to present to the Judge, but the alien's adjustment of status was denied several years ago.
Since the denial of AOS, the alien has been in unlawful status, and it is not clear whether the alien is still adjustable under the Immigration and Nationality Act.
Form I-140 also states, "Check below if this petition is being filed:
1. To amend a previously filed petition. Previous petition receipt number:
2. For the Schedule A, Group I or II designation.
These categories serve as reminders that an I-140 may be filed multiple times with the same PERM approval. The first time the I-140 is filed, the original PERM must be submitted. However, subsequent filings will be "Amended Petitions" and do not require the original PERM.
Employers can file as many petitions as they wish, and in any category they wish. It is not uncommon for petitions with approved PERM cases to be filed both 2nd and 3rd preference.
Finally, when an I-140 is approved for an alien, the priority date may be used for subsequent I-140's filed for the same alien, even if filed by a different employer.