Do Computers Run the PERM Program?



Attorney Who Made a Minor and
Harmless Mistake on the ETA-9089 Form



On March 9, 2010 Nathan Littauer Hospital & Nursing Home filed a PERM application on behalf of an employee.  PERM is the usual first step in employmentbased immigration.  It involves a test of the labor market and attestation that there are no US citizens or permanent residents ready, willing, and qualified to do the job offered to the non-citizen.

The employer (or more probably their attorney) made one little mistake on the PERM ETA-9089 form.  The employer failed to answer question J-23 which indicates if the Employer is presently employing the beneficiary.  The employer did complete section K where they indicated that the beneficiary was presently employed by the employer and that the beneficiary had been employed by the employer since 2005.

On April 26, 2010 the Department of Labor’s computers analyzed and denied the Employer’s application.  In the denial, the employer cited the sole reason for denial was the failure to answer question J-23.  Under the Department of Labor’s regulations, failure to complete all the questions on the PERM application is grounds for a denial of a PERM application. 

On May 6, 2010, the Employer asked the Certifying Officer to reconsider his denial.  In this request, the Employer stated that the failure to answer question J-23 is a typographical error, and the answer to question J-23 can be found in the employment history (section K -6 and K-7) of the form.   This was the first opportunity for the Department of Labor to exercise common sense.  They missed it.  On June 29, 2010 the Department of Labor forwarded this file to the Board of Alien Labor Certification Appeals (BALCA) and requested their denial be affirmed. 

On August 16, 2011 the BALCA vacated the DOL’s decision in this case.  BALCA observed that the folks at the DOL did not have to look beyond the same page of the original application to determine the response to the inadvertently omitted section of the application. “We find that the [DOL’s] denial based on a pro forma computer check was arbitrary and capricious.”  BALCA remanded the application to the DOL for further processing.

This is not the first such BALCA remand.  Similar remands for silly mistakes on the form can be found here, here and here.  I wish the people at the Department of Labor’s Employment & Training Administration would realize that people make mistakes, and that some mistakes are harmless.  I also wish that they would realize that policy decision to eschew common sense and litigate every possible grounds of denial of a PERM application all the way to the Board of Alien Labor Certification Appeal serves only to drive up the costs for employers and delay the final determination of an otherwise meritorious PERM application. 

Copyright 2011  Richard M. Green                                                                                                     

When Circuit Court Justices Disagree: The Fugitive Disentitlement Doctrine

Dr. Richard Kimble (Harrison Ford) is confronted
by US Marshal Samuel Gerard (Tommy Lee Jones)

Another split in the circuits has arisen.  This split involves the applicability of the fugitive disentitlement doctrine in removal proceedings.  The fugitive disentitlement doctrine stands for the proposition that a fugitive from justice does not have standing in the court to seek relief from the order that he or she are evading.  Or to put it another way, like Roman Polanski or James “Whitey” Bulger, a person who is evading an adverse court order such as a prison term or removal order cannot seek the help of the courts until they submit to the courts order.

On August 8, 2011, the Fifth Circuit Court of Appeals in New Orleans handed down its decision in Bright v. Holder.  Ike Romanus Bright is a native and citizen of Nigeria and a lawful permanent resident.  The Department of Homeland Security sought Bright’s removal from the US after he plead guilty to attempted second degree murder in Texas.  The Immigration Judge found Bright removable, and the DHS sent Bright a notice to appear for removal on February 12, 2009.  When Bright failed to appear for removal, DHS issued a warrant for Bright’s arrest.

On March 9, 2009, Bright asked the Board of Immigration Appeals to reopen his case.  The DHS opposed the motion, stating that Bright was a fugitive from justice because he failed to appear for removal three weeks earlier.  Citing Sun v. Mukasey, 555 F3d. 802 (9th Cir. 2009) Bright replied stating that he was not a fugitive.  Unlike the fictional Dr. Richard Kimble, Bright was not actively evading the authorities.  In the three week between the date for removal and the filing of the motion to reopen, Bright maintained the same address, that address was known to the DHS.  Bright made no attempt to evade the authorities, and DHS had made no attempt to apprehend Bright.  The BIA denied his motion, and Bright appealed to the Fifth Circuit Court of Appeal.

The Fifth Circuit was unpersuaded by Bright’s argument.  Following the Second Circuit's decision in Gao. v Gonzales, 481 F.3d 173 (2nd Cir, 2007)  and Seventh Circuit's decision in Sapoundjiev v. Ashcroft, 376 F.3d 727 (7th Cir, 2004), the court dismissed his petition for review stating that the mere fact that he had failed to appear for removal makes Bright a fugitive.  This decision sets up a split in the circuits.  The Second and Seventh Courts of Appeals have held that the mere failure to appear for removal makes an alien a fugitive from justice.  The Ninth, Third, Eight, and Eleventh Circuits have held that the fugitive disentitlement doctrine only applies to individual that are actually evading authorities.  It is unclear if the US Supreme Court would review Bright’s case.  He has 90 days to petition the court for a writ of certiorari.

(c) Richard M. Green, All Rights Reserved

House Passes Bill to Ease CPR Removal Requirements for Active Duty Military Families

On Monday, August 1, 2011, while the House of Representatives was welcoming Representative Gabrielle Giffords back to the floor and voting on the debt deal, the House also passed a bill that will ease the immigration process for members of the armed forces. 

With a vote of 426 to 0, the House of Representatives passed HR 398.  If enacted into law, this bill will toll the 90 day filing period for conditional permanent residents to remove conditions from permanent residency while either the US citizen or non-citizen spouse is serving abroad in active-duty military or naval service.  This bill will also suspend any interview on a petition to remove conditions from residence until the service member returns from an overseas deployment.

After passage by the House, this bill was sent over to the Senate.  It will it will be heard in September after the summer recess.  If passed by the Senate, HR. 398 will be sent to President Obama for his signature.

Copyright, 2011 Richard M. Green

They Know It When They See It

Supreme Court Justice Potter Stewart

The US economy wants, needs, and desires the services of highly skilled and highly trained people.  To that end, Congress added special visa categories to the Immigration and Nationality Act [INA] just for such individuals.  They are the Person of Extraordinary Ability, Person of Exceptional Ability, and Outstanding Researcher and Professor categories.  These categories are reserved for individuals that are operating at a level beyond mere mortals, such as those who hold Doctor of Philosophy degrees and are conducting cutting edge research; Nobel Prize winners, and those who can hit a 100 mph fastball over the Green Monster in Fenway Park.

Shortly after Congress created these visa categories, the immigration service wrote regulations interpreting the statutes.  The US Citizenship & Immigration Service wrote regulations where they defined the kind of evidence they would accept in adjudication of this visa petition.  This evidence includes:

·      Receipt of International or Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence

·      Membership in Associations that Require Outstanding Achievements from their members;

·      Published Materials about the applicant in professional or major trade publications;

·      Evidence that the applicant has served as the judge of the work of others in his or her field;

·      Evidence of original scholarly, scientific, artistic, athletic or business related contributions of major significance;

·      Publication of scholarly articles in the field of endeavor in major trade or other media;

·      Performance in a leading or critical role for an organization that has a distinguished reputation;

·      Evidence that the applicant has commanded a high salary; and

·      Evidence of commercial success in the field of endeavor.

USCIS conducts a two-step analysis of the evidence.  First they review the evidence meets the criteria listed above.  Then, in an effort to limit the extraordinary ability visa category to the crème de la crème, CIS conducts a meta level analysis of all the evidence submitted to determine if the applicant has both a “level of expertise indicating that the individual is one of that small percentage who have risen to the very top of their field of endeavor” and that have “sustained national and international acclaim’.  Click here to read the entire regulation.

The difficulty with this two step analysis is that there is no clear test to determine what constitutes an individual who is in the small percentage that have risen to the top of their endeavor.  It is easy to determine if an applicant has the threshold evidence.  USCIS’ rules for determining who is at the top of their field are a little more enigmatic.  CIS instructs its adjudicators to “consider all of the evidence to make a final merit determination of whether or not the petitioner has, by a preponderance of the evidence, shown that the beneficiary is at a degree of expertise significantly above that ordinarily encountered.”   The difficulty with this standard is that a CIS adjudicator is probably not competent to evaluate the evidence presented.

Without clearer guidance to the CIS adjudicator (and by extension, the applicant pool), this the two-step analysis is akin to Supreme Court Justice Potter Stewart’s definition of obscenity:  I know it when I see it.   

Until recently CIS’ two-step analysis has not fared well in court.  See Muni v. INS, 891 F.Supp 440 N.D. Ill. 1995 and Grimson v. INS, 934 F.Supp 965 (N.D. Ill 1996)(INS improperly discounted the evidence of NHL Hockey Players) and Buletini v. INS, 860 F.Supp 1222 (E.D. Mish 1994)(Immigration Service improperly discounted evidence of physician).  However, CIS’ two-step analysis has recently gained traction.  In Kazarin v. USCIS, the Ninth Circuit Court of Appeals upheld the denial of an extraordinary ability visa petition for a theoretical physicist.  CIS has interpreted this decision as judicial affirmance of their analysis.   Click here to read CIS’s interim guidance memo.

Individuals contemplating filing these petitions consult immigration lawyers to discuss their options, the merits of their application and likelihood of success of a visa petition.  CIS’ new two-step analysis injects a level of arbitrariness does a dis-service to potential immigrants and by extension, the American economy.