PERM Application Denials
Dealing with PERM application denials isn't easy. Here are some tips on what to do when an application for permanent labor certification is rejected.
You've decided that in order to fill a vacant position, you're going to have to look outside the American labor force.
Since hiring a foreign employee to work on U.S. soil isn't something the government takes lightly, you followed all the proper protocols and submitted the appropriate paperwork to begin the labor certification process. But after your application made its way through Program Electronic Review Management (PERM), the electronic labor certification system, you were notified that your application was denied. Now what?
There are a lot of reasons why a PERM application can be denied. Those reasons almost always boil down to either a belief that the vacancy has the potential to be filled by an American worker or a procedural problem with the application. Although there is a backlog of application reviews, it may be worthwhile to request a reconsideration or appeal. Then again, the most expeditious route may be to re-file and start the process all over again.
After you've been notified that your PERM application has been denied, you have 30 days to file a request for a reconsideration of the decision by the Certifying Officer (CO). What does that mean? Basically, you're asking the person who denied your request to reconsider his decision. The application must be made directly to the CO in writing, and although you can't submit new documentation, you can resubmit documentation as well as any documentation that existed at the time of the initial application.
Reviews must also be made within the 30-day time window. But unlike reconsiderations, reviews are requested from the Board of Alien Labor Certification Appeals (BALCA). BALCA is only permitted to review information and documentation that was originally submitted to the CO. If a CO refuses to reopen your case based on a reconsideration request, he will likely forward it to BALCA for a formal review. If a case appears before BALCA, both the employer and the Department of Labor will have an opportunity to argue their case before a final decision is made.
More likely than not, BALCA will reaffirm the decision of the CO unless you are able to prove that the CO made an obvious error or mishandled the application. Given the potential for backlogs and procedural delays, you may want to consider filing a new PERM application rather than pursuing an appeal. However, you will need to weigh that decision against the reality that a new application will send you to the back of the line for an available visa number - and waiting for an available visa number is a process that can take years.
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