Our offices received a copy of a recent Request for Evidence (RFE) for a third preference EB-3 employment-based I-140 Immigrant Petition for Alien Workers that appears to signal a change in adjudication practices for the United States Citizenship and Immigration Services (USCIS).

When a foreign national’s employer seeks to file an employment-based I-140 Immigrant Petition within the third preference EB-3 category, they are required to include a Permanent (PERM) Labor Certification, ETA Form 9089 issued by the Department of Labor (DOL). By issuing this labor certification, DOL certifies to USCIS that:

  1. There are not enough sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment;
  2. Employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The process for an employer to receive a PERM certification involves multiple steps, including but not limited to: public job advertisements in print newspapers, recruitment documentation for the position, evidence that no qualified U.S. applicants for the position were disqualified from selection, etc. Most importantly, the PERM, ETA Form 9089 falls within the jurisdiction of DOL. Because of this, it has been typical practice of USCIS to not challenge DOL’s certification of a PERM, ETA Form 9089.

However, this recent RFE, dated August 17, 2018, signals a significant change to standard adjudication practice. In particular, USCIS challenged a certified PERM by DOL and requested evidence and documentation that were already approved of by DOL, including:To date, USCIS has not published any official policy or adjudicatory change memos or other publications to signal this change. At this time, it is uncertain how widespread these changes are. Our offices will keep you apprised of any developments related to this matter.

If you have any questions, please do not hesitate to contact our offices.