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Bloggings On PERM Labor Certification

by Joel Stewart

PERM: Filing I-140 Petitions Electronically

I have heard it said that if you file an I-140 electronically, you have to file the supporting documentation in seven days, yet there does not appear to be any basis for this.

The regulations are silent on this. The only doctrine controlling I-140 filings is the set of instructions on the USCIS internet page. The current version does not state how many days the petitioner has to send in the supporting documentation. Most employers have been waiting for an RFE requesting documents, although I have advised that prudent petitioners should file the supporting documentation by mail within 30 days. In some cases, the documentation may be sent in stages -- one set of documentation to be followed by a supplemental filing -- all before receiving an RFE!

Click the tab for electronic filing, fill out the form, click the finish or send button, and the petition is filed!

The process results in an instantaneous filing receipt.  This is a great advantage in some cases, where you want a receipt in your hands, but don't want to wait several weeks for it to arrive by mail. Of course, mailed receipts may have typos which you cannot control, while an electronically filed I-140 reflects everything that you type. Nothing is left up to the imagination of a contracted employee at a Lock Box.

It is also true that some receipts generated by the Lock Box may be placed in an envelope addressed to the wrong party, or may undergo some calamity in the voyage from point A to point B.

Aside from avoiding such mundane mishaps, there may be other, more strategic reasons to file an I-140 electronically. First, if the PERM was previously filed, and you are refiling the PERM with a new I-140 (yes, you are allowed to do that -- see my previous Blogs on this subject), there was a time when the petition and instructions did not provide a discernible way to explain to the filing authority that the PERM was not an original because it was being refiled. 

Anyone who tried this knows what I am talking about.  We often would receive the I-140 back in the mail, without having been entered into the system by the Service, and usually with a note attached saying that the original PERM was missing. Sometimes this could be anticipated by using colored paper, envelopes within envelopes or anything else to catch the attention of the mail room, "Don't send the I-140 back to sender."

More recently, the USCIS redrafted the I-140, and it now has a box called "Amended Petition." If this box is checked, the agency should understand that it must accept a copy of a PERM, since it is clear that the I-140 is a refiled petition, not an original.

And this is a good time to remind our readers -- if you have a denied I-140, or a horrendous RFE, why not consider withdrawing the petition, or not appealing the denial and just filing a new one?  It usually makes more sense to file a new, amended petition, than to file an I-290B motion to reconsider or appeal, because you get the advantage of hindsight when you file a new petition -- to see what went wrong with the first one and bring the new one up to the high standard that your client deserves.

The new petition will probably go to a new examiner and this provides the promise of a fresh look!

Happy Filing!

About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil. Author Name bio text

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.