In this video, attorney Jacob Sapochnick discusses different avenues that an employer may wish to take if their employee’s PERM labor certification has been denied by the U.S. Department of Labor (DOL). For those who are unaware, the PERM labor certification process allows a U.S. employer to sponsor a foreign worker’s green card so that they can live and work permanently in the United States. PERM is the first step the U.S. employer must take before they can file the foreign worker’s immigration petition with the U.S. Citizenship and Immigration Services (USCIS) also known as Form I-140 Immigrant Petition for Alien Worker.
But what happens when the employer’s PERM labor certification application is denied by the Department of Labor? We discuss all that and more right here on this video.
The denial of a PERM labor certification application can be frustrating because employers and foreign workers invest a great deal of time and expense to ensure that the process goes smoothly.
There are generally three steps involved in the process of obtaining permanent residence through an employer:
- The U.S. employer must file a labor certification application with the U.S. Department of Labor. This requires the employer to prove that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job being offered in the area of intended employment. This is proven by going through a recruitment process where the employer places multiple advertisements for the position. The employer must also show that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- Once a permanent labor certification application has been approved by the DOL, the employer will need to file Form I-140 Immigrant Petition for Alien Worker with USCIS on behalf of the foreign worker.
- Upon approval of Form I-140, the applicant can proceed with applying for adjustment of status to permanent residence with USCIS. In some instances, the I-140 and I-485 can be filed concurrently.
For the purposes of today’s topic, we will be focusing on the first step which requires approval of the labor certification application.
This brings us to the central question, what can be done to overcome a PERM denial?
Tip #1 Review and Understand the Reasons for the Denial
When a labor certification application is rejected, it is important for the employer to understand the reason for the denial by reviewing the denial notice issued by the Department of Labor. The notice will outline the deficiencies in the application and help you and your attorney determine your next steps. There are a multitude of reasons why a labor certification application can be denied, some are as simple as checking the wrong box on Form ETA 9089, while others are more complex such as using a job description that does not match the requirements of the position, or inadequate recruitment.
Tip #2 Requests for Reconsideration with the Department of Labor
If you believe that the denial of your PERM labor application was erroneous or unreasonable you can submit a request for reconsideration with the Department of Labor within 30 days of the denial.
When submitting a request for reconsideration, it is very important to outline in sufficient detail the reasons you believe the denial was erroneous or unreasonable and why the Department of Labor should reverse their decision in your favor. You must also include any supporting documentation that supports your position.
Tip #3 BALCA Appeals
If your request for reconsideration is unsuccessful, you may wish to file an appeal with the Board of Alien Labor Certification (BALCA). BALCA is a board of Administrative Law Judges within the Department of Labor that are responsible for reviewing and deciding immigration-related labor certification appeals.
However, you should be aware that if you file an appeal with BALCA you cannot file a new PERM labor certification application with the Department of Labor until you receive a final decision. Therefore, you should carefully weigh the advantages and disadvantages of filing such an appeal with your immigration attorney before making any decisions. It may be more beneficial for you to re-file a new PERM labor certification application and start the process again from scratch.
One of the major drawbacks of the appeals process is that it takes quite some time to receive a final decision. While refiling a PERM labor certification application can also a lengthy process, it is typically faster than waiting on the appeals process.
Tip #4 Refiling the PERM labor certification application
If the appeals process is not favorable you may wish to explore other options. For example, you may wish to consider refiling the PERM labor certification application with a new position or cure any deficiencies that appeared on your initial application. Certain employees may qualify for multiple positions based upon their skills and qualifications. In such cases, the employer can discuss employment positions with their immigration attorney to determine the most suitable position for the candidate’s labor certification application.
Those who do not qualify for PERM labor certification may also consider other immigration alternatives that do not require employment sponsorship such as the EB-2 National Interest Waiver. This may be a good option for those who possess either an advanced degree or exceptional ability in their field and can demonstrate that their work is of substantial merit and national importance to the U.S. government.
In most cases, it is possible for refiling of PERM labor certifications to be successful with some planning and overcoming the deficiencies of the initial application.
If you have not yet filed your PERM labor application, then you have the perfect opportunity to plan your filing and meet the requirements from the very beginning.
We hope that the tips we have provided here are helpful to you.
Contact us. Need our help? To schedule a consultation, please text 619-483-4549 or call 619-819-9204.
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