Unadjudicated PERM Cases
In this last issue for 2005, we try and take a look ahead at the PERM scene one year from now, i.e. at year-end 2006. We suspect the biggest story at that time will be unadjudicated PERM cases. These cases would be those properly filed, and not denied and/or audited, but just not acted on by DOL for looong periods of time. Perhaps a new term of art will arise "black-hole PERM cases" to describe these vanished and languishing cases. Such cases already exist of course, and their most notable feature, taken in the aggregate, is that there is no pattern discernable as to why a case is held up and another apparently identical one adjudicated. In other words, FIFO (first-in, first-out) is not an operative principle at DOL under PERM, and perhaps DOL does not intend any FIFO to apply to "black-hole" PERM cases. Without predictability and transperency, PERM will not meet the needs of the bar or the employer community, it will lead instead to frustration. However, from DOL's point of view, predictability and transperency of PERM standards will inevitably lead to high percentages of certification for savvy attorneys - a situation DOL appears anxious to avoid. Hence there is apparently a fundamental conflict at the heart of the PERM system, and if our conjecture here is correct, then the PERM system will move from one crisis to another over the course of 2006. Not a happy note to end the year with, but there it is - we call it like we see it.
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Immigration Monthly: December 2005
This month's Immigration Monthly issue features an article by Cyrus D. Mehta, "Judge Alito On Immigration Law"
BIA May Not Preterminate Without Regulatory Authority
In Yeghiazaryan v. Gonzales, No. 03-72159 (9th Cir. Dec. 14, 2005), the court said that the BIA erred in denying Petitioner's motion to reconsider when it pretermitted the time he had available to file his motion to reopen.
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In response to your comment in ID's 12/29/2005 issue, we would ask how long MTRís are taking?
Roy E. Schremp, The Law Office of Dennis M. Clare
In response to your comment in ID's 12/29/2005 issue, I just wanted to let you know about two cases that were returned timely and I have the evidence showing it was, and case got closed claiming did not receive response back in time. I sent the proof to the Department of Labor and followed up with email's but to no avail. Have you heard about anyone else with the same situation?
Name Not Provided
In response to your comment in ID's 12/29/2005 issue, I wrote a note with my objections to a denial, to the Atlanta office,
requesting to have the certifying officer reconsider, but that I did not
want to risk tying the case up for a long time by having an appeal to Balca,
and I got an E mail in a few days. They informed me that they could not
give me any idea of time if the case went to BALCA because they had not
worked out the procedures for BALCA appeals yet and I could not limit an MTR
to reconsideration by the certifying officer. Therefore if I did not wish
to risk a long wait I should withdraw my letter and refile because I would
not be able to refile if the case got sent to BALCA.
In response to your comment in ID's 12/29/2005 issue, we have been told repeatedly by DOL that under the PERM rules there is no mechanism for them to consider MTRís and that it is a waste of time to file them. In fact we have several cases like you describe in your article and were told by DOL that we had to either re-file or appeal to BALCA.
Lynn Susser, Esq., Siskind Susser PC
Editor's Note: Please see Minutes of AILA-DOL Liaison Meeting (11/14/2005) posted on Infonet on 12/2/2005, AILA Doc. No. 05120260 at pages 2, 7, 8 and 9. Besides, we have anecdotal information that attorneys are successfully using Motions to Reconsider with high certification percentages within reasonable but unpredictable time periods.
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