Recently, the USCIS has shown an interest in examining prior H petition documentation in the context of adjudicating I-140 petitions. They appear to be looking at the job requirements previously stated to try and determine whether the I-140 was filed in good faith. In one recent case, they asked for H documentation going back ten years.

Whether a denial based on suppositions derived from alleged inconsistencies between H petitions and a PERM application will stand up to appellate review is an open question. I very serious doubt that a simple inconsistency, supported by nothing more, is insufficient to support a denial.

On the other hand, where there is a pattern of H petitions that describe a job that does not require an advanced degree, including petitions filed after the PERM was put on file, that does raise questions. We know that many employers will low ball the prevailing wage figure for the H1 LCA by describing the job in very simple terms. If, however, the employer then files a PERM application for essentially the same job, but now requires an advanced degree, the CIS is going to be justifiably suspicious. They will likely issue an RFE asking the employer to explain the difference. This become a “are you lying now or were you lying then” kind of inquiry.

Before filing a PERM application, the employer and employee must examine the history of immigration filings on behalf of the employee very carefully. They must look for issues that might raise these kinds of questions. To the extent possible, the PERM application should anticipate these issues and deal with them.