Invalidation of Labor Certifications – What happens when the USCIS second guesses a certified PERM Application?

Invalidation of Labor Certification by the DHS/Consulate (USCUS) is rare. At least two types of invalidations have occurred recently, both by the Nebraska Service Center of the USCIS.

Authority can be traced to the regulations at 20 C.F. R. § 656.30(d):

(d) Invalidation of labor certifications. After issuance, a labor certification may be revoked by ETA using the procedures described in §656.32. Additionally, after issuance, a labor certification is subject to invalidation by the DHS or by a Consul of the Department of State upon a determination, made in accordance with those agencies’ procedures or by a court, of fraud or willful misrepresentation of a material fact involving the labor certification application. If evidence of such fraud or willful misrepresentation becomes known to the CO or to the Chief, Division of Foreign Labor Certification, the CO, or the Chief of the Division of Foreign Labor Certification, as appropriate, shall notify in writing the DHS or Department of State, as appropriate. A copy of the notification must be sent to the regional or national office, as appropriate, of the Department of Labor’s Office of Inspector General. Emphasis Supplied.

In the first instance, fraud was alleged in the experience gained from a prior employer. Apparently, the prior employer had been implicated for fraud and subsequently indicted. Because the Service felt the experience was gained through an employer who was no longer in business due to misconduct, it denied the I-140 and sought to recommend the labor certification for invalidation.

This issue was addressed in a recent AILA/SCOPS Teleconference dated, August 8, 2012. Here is the relevant extract from the Minutes (AILA InfoNet Doc. No. 12090442. (Posted 09/04/12):

9. I-140 RFEs or Notices of Intent to Revoke (NOIRs) on approved I-140 petitions have been issued questioning the bona fides of a beneficiary’s past employment with a company that may now be under investigation. Notwithstanding the present concerns with the former employer’s alleged misdeeds, it seems unduly harsh to penalize all former employees of those companies, as many were actual bona fide employees who gained valid work experience (and were never sponsored for any immigrant benefits by those entities). Will the Service fairly consider evidence of actual employment (e.g. payroll records, W-2 tax records, independent confirmation, etc.) to establish that the beneficiaries accrued bona fide work experience with these former employers to support the PERM labor certifications and I-140 petitions filed by subsequent employers?

RESPONSE:

It is appropriate to address any issues with secondary evidence.

So, it may be prudent to show through a detailed affidavit that the employee had no role whatsoever in the affairs of his prior employer and his employment was purely contractual. I would also include a letter from the end-client if this is a consulting company, showing the employee actually performed the duties listed.

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The second instance of invalidation is more troublesome and is based on the Neufeld Memo[1]…used out of context. The issue, very briefly, involves the Service using failure to show a valid employer-employee relationship at the time of filing the labor certification and I-140 as the basis for invalidating the labor certification. The employer is a Software Consulting (IT Staffing Company). The revocation of the underlying labor certification is at best a travesty and at worst both arbitrary and capricious. It violates Petitioner’s procedural due process rights since it takes away the ability of Petitioner to re-file and establish eligibility for an Immigrant Petition.

In fact, AILA’s Amicus Committee has joined Strategic Staffing IT, Inc and Seshagiri Hullur (Case No. 4:11-cv-15709; AILA InfoNet Doc id. 12100844), in filing an amicus brief arguing this very issue. The outcome is awaited.

The Service’s reliance on the Neufeld Memo concerning the “Employer-Employee relationship in H-1Bs” in the Context of the I-140 Immigrant Petition is at best misplaced. In fact, AILA saw the likelihood of this happening when the Neufeld Memo was first published. In a Memo dated March 19, 2010 (AILA InfoNet Doc. No. 10031931), AILA questioned the Memo’s influence on other visa categories including the Immigrant Petition. The Memo states in pertinent part:

“…the Memo’s misguided emphasis on certain elements in the employer-employee relationship in the H-1B context is now spreading to other nonimmigrant and immigrant visa adjudications where such concepts clearly do not belong. For the reasons detailed below, USCIS should withdraw the Neufeld Memo.”

In this instance, an Appeal from the Service decision invalidating labor certification is in order. Whatever the outcome of the pending Appeal and the matter before the U.S. District Court, Eastern District of Michigan Southern Division, I believe clarity is desperately needed as to whether the Neufeld Memo may be used to adjudicate an Immigrant Petition.