DOL Forced to Process Delayed PERM Case on Emergency Basis
Posted Jul 24, 2009
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A U.S. District Court granted an emergency motion in June 2009 for a temporary restraining order (TRO) against the U.S. Department of Labor (DOL)'s Employment and Training Administration (ETA) in a case involving a delayed PERM labor certification application. The Federal Judge ordered ETA to make a decision on the PERM application by 2 o'clock p.m. the next day. As explained below, the facts of this particular case, Artur Kumykov v. William Carlson, et al, were compelling. There was an urgent need for a decision in the case, due to the impending aging out of the plaintiff's son. Although the Murthy Law Firm was not involved in this case against the DOL, we are pleased to share this success story with our readers.
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Background on Writs of Mandamus
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This case is yet another use of the writ of mandamus action in order to force the government to make a decision. (A writ of mandamus complaint was made prior to the filing of the emergency motion, and the Court relied upon its mandamus authority to grant the motion.) A July 3, 2009 discussion of how writ of mandamus lawsuits have resolved a wide variety of immigration benefits cases can be found on MurthyDotCom in our NewsBrief entitled, Murthy Law Firm Resolves H1B Delays through Filing Lawsuit.
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Facts of Case : Delayed PERM Application
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The issue in this case was that a foreign national was sponsored for labor certification for the position of chief financial officer. This PERM application (or ETA-9089) was filed on July 17, 2008, after the sponsoring employer completed the required recruitment. At the time of the filing of this writ of mandamus lawsuit, the PERM application was pending for approximately ten months. The application was not selected for an audit by ETA.
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Aging-Out of Beneficiary's Child
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The sponsored employee brought the lawsuit against the DOL, claiming that the processing time was unreasonable and that it was going to deprive his son of lawful permanent residency. The son's 21st birthday was June 7, 2009. Thus, at the time of the filing of the motion, in late May 2009, the matter was urgent. The Judge's written decision notes that, for the son to qualify for a green card through his father's labor certification case, an Immigrant Petition for Alien Worker (I-140) had to be filed with the USCIS. In order to have protections under the Child Status Protection Act, and potentially be eligible as a derivate beneficiary in his father's green card case, the I-140 petition had to be filed before the son reached age 21. Of course, the I-140 could not be filed without the approved PERM labor certification. The delay in processing the PERM application, therefore, was preventing an I-140 filing and precluding the son from qualifying for permanent residence as a derivative beneficiary in his father's case.
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Need for Court to Reach Decision Promptly
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The plaintiff, Mr. Kumykov, filed his complaint for writ of mandamus on May 5, 2009. The deadline for the DOL's written response to the complaint would normally be 60 days later. This would have been after the son's 21st birthday. On May 27, 2009, Mr. Kumykov thus filed a motion for emergency TRO seeking a ruling before his son's birthday. The court required the filing of legal briefs and held a hearing within a matter of days. The decision on the TRO states that, while all such cases are factually different, in this case the delay in processing the PERM application was unreasonable. The court wrote that Mr. Kumykov had no alternative but to seek help from the court. They noted that ETA was currently processing PERM applications not selected for audit filed four months after Mr. Kumykov's application.
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PERM Processing Not Discretionary - Must be Timely
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The Judge wrote in his decision that, while the decision to certify or deny certification on any particular PERM application is discretionary, the legal requirement to process PERM applications is not discretionary. ETA must process all PERM applications in a reasonable time. What constitutes a reasonable time depends upon whether the application is selected for audit and the individual facts of each PERM application. There is no specific processing time set within the law. However, the Court noted that the preamble to the PERM regulation indicated an anticipated 45-to-60-day processing time for PERM applications not selected for audit.
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ETA Confirmed FIFO Processing - No Explanation for Delay
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The ETA submitted a declaration stating that PERM applications are processed on a first-in/first-out (FIFO) basis. The particular application, however, was filed four months earlier than the PERM cases the DOL was processing at the time of the lawsuit. Because the ETA could not offer any explanation for the delay, the Judge found that he could compel the ETA to process the individual PERM application through both the writ of mandamus and the Administrative Procedures Act.
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Other Class Actions Possible
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While this mandamus victory in Federal Court only relates to one family, there are situations in which similarly situated people can join their cases together in class actions. Regular readers of MurthyDotCom and the MurthyBulletin may recall our report of a class action that was brought in Federal Court in New York City in our May 9, 2008 NewsBrief, Good News on Mandamus Lawsuits for Delayed Naturalization Applicants. In a decision released on July 16, 2009, a Federal Judge granted class certification in a class action lawsuit filed in the U.S. District Court for the Central District of California. The case, Costelo v. Chertoff, deals with numerous individuals' claims relating to interpretation of the Child Status Protection Act (CSPA). The Murthy Law Firm was not involved in these lawsuits.
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Conclusion
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We at Murthy Law Firm commend the individuals and attorneys involved in bringing these two lawsuits and congratulate them on their successes. The Kumykov v. Carlson case is the first reported case of this type against the DOL that has come to our attention. There may be other opportunities for similar cases against the DOL, when supported by the facts. While other such cases may be brought in Federal courts around the United States, it is important to remember that the individual facts of each case may determine whether relief can be granted through a writ of mandamus. Such relief on behalf of appropriate clients will continue to be pursued by our firm. Developments in mandamus litigation will be reported to our readers.