Proper Invalidation Of A Labor Certification By DHS, DOL Or DOS
Due to recent instances of fraudulent filings of labor certification applications by unscrupulous immigration attorneys, DHS has been invalidating hundreds, if not thousands, of previously certified labor certifications. In many instances, neither DHS nor DOL ever notifies the sponsoring employers of its intent to invalidate the labor certifications. In a few cases, the Department of States has also decided to invalidate labor certifications, revoke immigrant visas or refuse to return approved IV petitions to the CIS Service Center for proper revocation.DHS usually cites 20 CFR §656.30(d) as the authority for invalidating these labor certifications and revoking the I-140 petitions. It states the following:
(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. 20 CFR §656.30(d)Based on this regulation, if the CIS determines that there was fraud or willful misrepresentation involving a labor certification application, the application is to be invalidated and a notice of the termination and the reason therefore is to be sent by the Certifying Officer to the employer, and a copy of the notification from CIS is to be sent as well. In many cases, the employer is never provided a notice of the invalidation. If the employer was never provided with a notice of the invalidation of the labor certification, then the labor certification is legally still valid. Based on this reading, if an employer can prove that they were never given notice by the DOL that the labor certification was invalidated, it is still a valid labor certification because it was never properly invalidated in accordance to 20 CFR §656.30(d). It can therefore be used to support a second, properly filed IV petition. 20 CFR §656.32 outlines the Department of Labor procedures for revocation. A key component of the DOL procedures is the requirement of notice to the sponsoring employer of an intent to invalidate, with 30 days to respond to the allegation. In many cases, the sponsoring employer is never notified of an intent to deny by the Department of Labor. Therefore, the labor certification must still be valid because the Department of Labor did not properly notify the employer. Under §656.30(d), DHS has improperly invalidated many labor certification if they did not give proper notice of an intent to deny to the sponsoring employer. The controlling regulation for DHS is 8 CFR §205.2 which governs the revocation of an I-140 petition. If the DHS did not give the sponsoring employer this intent to revoke his/her I-140 petition, and an opportunity to respond, the I-140 visa petition must still be valid because of DHS's failure to follow the revocation rule. What about the Department of State? Is it bound by the same rules of giving notice to the sponsor? According to the FAM 40.51 Note N 10(c), invalidation of the labor certification automatically revokes the petition in accordance to 8 CFR §205.2(c) and 20 CFR §656.30 or §656.31. FAM 40.51 Note N 10.4 states that if a consular officer believes a labor certification should be invalidated, the consular officer shall request an advisory opinion from the Department of State. Therefore, the Department of State is also required to follow the same process of giving notice to the sponsoring employer. In one instance, the Department of State refused to return a I-140 petition and just invalidated and refused the approved IV. This is clearly in violation of the FAM 42.43 which requires that the IV petition be returned to USCIS through the National Visa Center (NVC). For the past few years, many labor certificates and visa petitions have been improperly invalidated and revoked for the simple reason that notice was never given to the sponsoring employer. Due to the increasing instances of unchecked (and erroneous) invalidations, it is incumbent upon immigration attorneys to bring such cases to the attention of DHS and the Visa Office in all instances where the regulations or the FAM notes were not scrupulously followed.
Richard W. Chang he is a Junior Member in the Law Office Of Wasserman, Mancini, & Chang, P.C. He practices Immigration Law and Small Business Law, he is a member of American Immigration Lawyers Association (AILA).
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