While employers would like to avoid PERM denials, more importantly, they should avoid revocation or invalidation of approved cases.

Revocation

The Department of Labour has broad powers to revoke approvals. The regulation simply states: "The Certifying Officer…may take steps to revoke an approved labor certification, if he/she finds the certification was not justified." This broad power requires the certifying officer to issue a notice of intent to revoke and provide 30 days for the employer to respond.

Reasons justifying revocation might range from misrepresentation to a simple change of circumstances. A change of circumstances could include the place of employment moving from one region of the country to another, because the wage offer – which is crucial to PERM cases – is valid only for the place where it was calculated. If an employer moves to a new office outside the normal commuting area, the wage will be inaccurate and revocation will be appropriate.

There is no time limit for revocation and the certifying officer can take action by giving notice to the employer (not the foreign worker). If the employer is no longer available to respond (or is no longer interested in doing so), the revocation could take place without the foreign worker's knowledge. This could lead to the loss of a green card or even citizenship years later.

Invalidation

'Invalidation' refers to a decision to revoke made by sister agencies. Both the Department of Homeland Security (including the immigration service) and the Department of State (including consular officers abroad) can invalidate a labour certification when a matter is pending before them. However, they must follow the set procedure and cannot make a finding of invalidation without providing the employer with notice and an opportunity to respond.

Ability to refile

Approved labour certifications that have no basis for invalidation are valid forever, subject to one condition: the employer must have filed the approved PERM certification together with an I-140 employment-based immigrant petition within 180 days of approval. This provides a 180-day window for employers to assemble the documents needed to support the I-140, including proof of the foreign worker's qualifications and the employer's ability to pay the wages.

I-140 petitions may be refiled at any time, without limit, as amended petitions. Even if an I-140 petition is denied or withdrawn for lack of evidence or an apparent misapplication of the law, the employer can refile it. In some instances, petitioners have obtained approval of amended I-140s refiled 10 years after the original petition, when documentation of qualifications or financial ability finally became available.

Developments

The Obama administration recently announced proposals to improve the plight of employers and foreign workers by increasing the reliability and flexibility of the PERM approval process. A US Citizenship and Immigration Services memorandum issued in December 2015 states that the government is seeking greater job portability for beneficiaries of I-140 petitions, so that they will be less vulnerable to revocation. Foreign workers with approved PERM certifications and pending I-140 petitions will be protected from removal, even if the employer withdraws the petition. Changes in job duties, salary level and other job-related conditions will no longer provide certifying officers with justification to revoke due to promotions or reassignments during the lengthy process to obtain permanent residency.

President Obama's memorandum indicates that the changes will require rulemaking rather than unilateral executive actions, probably because the temporary legalisation of undocumented persons by executive decrees such as the Deferred Action for Childhood Arrivals and the Deferred Action for Parents of Americans has become unpopular with the public. The PERM application process will not change, but the treatment of approved PERM cases and I-140 petitions based on those approvals will be considerably improved.

Comment

Since revocation and invalidation remain a threat, the best preventive remedy is to process all PERM applications carefully to obtain long-lasting approvals and review past cases to see whether a notice of revocation might be imminent.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (joel.stewart@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.