Two Bites To The Apple?
The PERM re-filing procedure at 20 CFR 656.17(d)(1), has given rise to some controversy. The controversy centers on the language below:
"Withdrawing the original application in accordance with ETA procedures. Filing an application under this part stating the employer’s desire to use the original filing date will be deemed to be a withdrawal of the original application. The original application will be deemed withdrawn regardless of whether the employer’s request to use the original filing date is approved."
Some attorneys have argued that per the plain language above, a withdrawal of the original application occurs in two parts: (1) filing the application under PERM and (2) stating the employer's desire to use the original filing date. Hence, merely filing the application under PERM, without the employer explicitly stating his/her desire to use the original filing date, cannot be construed as a withdrawal of the original application. In other words, one has two bites at the apple.
However, elsewhere in the promulgation, DOL makes its intent unambiguously clear. At 69 FR 77342 (center column), DOL states:
"If the refiled application is determined not to be identical to the original application in accordance with § 656.17(d), the refiled application will be processed using the new filing date, and the original application will be treated as withdrawn."
If DOL contemplates that even non-identical applications will be deemed withdrawn under 20 CFR 656.17(d), it is logical to conclude that identical applications will be assuredly deemed withdrawn. While DOL can be held to its own awkward language in the rule, attorneys proceeding on the basis of the "two bites to the apple" idea may need to litigate the issue. DOL appears to contemplate a two-track procedure post-March 28th: one at the backlog reduction centers and another at the PERM centers. Should DOL claim in court that it has the authority to decide that choosing one procedure excludes the other, a court may well hold that this is a policy decision within DOL's ambit and discretion, and litigation along the lines of "two bites to the apple" may therefore fail.
With PERM, DOL has taken a major step on the path to using technology intensively in labor certification processing. We believe that the DOL database for backlog reduction will be harmonized in some way with the DOL database for PERM. While this may take some time, it will likely occur ultimately. What this implies is that there "two bites to the apple" may not be possible practically as well as legally.
This is just one example, albeit a well-discussed one, of the many unexpected but critical issues raised by the PERM rule. ILW.COM will keep you on the cutting edge of PERM through Immigration Daily, books, and seminars.
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THE PERM BOOK - Labor Certification by Joel Stewart. This book is a detailed, in-depth, section-by-section analysis of the PERM rule by noted labor certification expert Joel Stewart, and will include additional essays by Gary Endelman and other distinguished attorneys. This book is being written for labor certification practitioners, and is not intended to decorate shelves, it will instead be a practical reference tool that we anticipate will be frequently consulted in preparing cases under the new PERM regime. Orders for this book will be shipped according to the principle first ordered, first shipped (the expected publication date is March 2005). For more info, and to order, see here.
Fully-Indexed PERM Rule. This is a free soft-bound supplement to 20/22/28 CFR Plus, a part of Patel's Immigration Law Library. This book includes: (a) A comprehensive and easy-to-use 12 page topical index to the PERM Rule by P.J. Patel, author of Patel's Immigration Law Library; (b) 10 Key Questions on PERM by Gary Endelman; (c) The PERM World: A Temporary Answer to a Permanent Immigration Problem by David Nachman; and (d) DOL Memorandum: Technical Instructions Regarding Unprocessed Permanent Foreign Labor Certification Cases. This free soft-bound supplement is currrently being printed. For more info on this essential reference resource, and to order, see here.
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Courts Retain Jurisdiction To Review Multinational Manager I-140 Revocations
In ANA International Inc., v. Way, No. 03-35130 (9th Cir. Dec. 16, 2005), the court said that 8 USC 1252(a)(2)(B)(ii) did not bar judicial review of the Attorney General's discretionary decision to revoke a previously approved visa petition when he decided that the alien had failed to abide by the conditions under which the visa was first obtained.
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It is my view that the House has about 110 votes from Tancredo and Delay supporters, I question if all of them would support such a Bill. Take away the immigration issue and look at a national ID and states rights. Are some members of Congress that tell us that they ran for a smaller national government and states rights now supporting this? The Congressman said that the actors of 9/11 had 63 or so drivers licenses for the 19 people in fact they had 13 legal licenses and two were legal duplicates. This is another step in some trying to turn the US into a federal police state. A Washington Post and ABC poll indicated that most people support a plan that would let working undocumented people remain and have a legal status. Political Party, age, imcome, part of the country (southwest with the most support) faith, education, sex, age, and race. For too long, the message that people get is from polls conducted by American Patrol are not likely to be done by a cross section of people. In 2005 even more cruel hateful trash will come out of the US House then even last year. Most members of Congress want to do the right thing but with Tancredo's mob having the run of the hill and Tancredo's office we need to have a plan of action to let members of Congress know our side. The groups that are behind alot of this has a foothold in the US House. It has many faces from FAIR to CIS to American Patrol, English Only, US Numbers, etc. The list is long and they are united and act as they are the law and not held accountable to anyone.
While Sensenbrenner's proposed legislation may have little chance of getting adopted by the Senate, it is equally true that "immigration reform" measures backed by the Senate have failed in the House (1/28/05 ID). The fact is, both the President and the Senate (the latter also known as a "millionaires' club) are out of touch with reality--the reality that the vast majority of the American people (far more than the 51 percent or so who voted for the President) do not want any form of amnesty for illegal aliens. Another reality is that the President will not be running for office again, while Congress faces a mid-term election in less than two years, and that many in his own party who publicly supported the President for re-election now feel free to differ with him on the issues, especially "immigration reform". A final reality is that any "immigration reform", "guest worker program", or other amnesty will have to compete for the President's "political capital" with the Iraq War, budget deficits (amnesty would add a few million more legalized beneficiaries for the social programs for which budget cuts have just been announced), Social Security reform (ditto for eligible benefits recipients), tax reform, and the President's desire, in the face of all this, to make his tax cuts permanent.
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