The Office of Foreign Labor Certification (OFLC) within the U.S. Department of Labor (DOL) has announced a review of denials for the ETA form 9089, which is the application for permanent employment certification (PERM labor certification). The review will focus on Question H.10-B, which requires employers to identify an alternate occupation that an applicant could pursue to gain relevant experience. As a result of inconsistent adjudication of responses to H.10-B, the OFLC has decided to thoroughly review PERM denials that were based solely on this question.
Background on the PERM Process
During the PERM process, employers must specify the minimum qualifications needed for the permanent position offered to foreign nationals. This is done to ensure that qualified U.S. applicants are considered during the labor market test. In cases where the position requires prior experience, the employer must also specify the occupation in which applicants need to have the relevant experience. Usually, the experience required is in the same occupation as the job being offered. However, if the employer is open to considering experience in a different occupation, then Question H.10-B of Form 9089 mandates the employer to identify the job title of the acceptable alternate occupation.
The Concern with Question H.10-B
We have seen a sharp increase in PERM denials that are related to Question H.10-B dating back to October- December of 2022. The trend shows that the percentage of PERM applications denied by the DOL nearly doubled in contrast to the first quarter of FY 2022. The denials seem to be centered around the notion that Question H.10-B is not considered properly completed unless specific job titles are mentioned. The DOL’s position is that the field in the form was not properly completed if the employer uses alternative language. As a result, the entire PERM application is deemed incomplete. The DOL cites 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the basis for these denials.
On November 17, 2022 OFLC issued the following information to the American Immigration Lawyers Association (AILA) in response to the issue:
OFLC understands that there may be a variety of relevant specific job titles in which required experience may be gained. Employers may list a specific job title, a number of related job titles, or even language such as ‘any occupation in which the required experience was gained.’ The answer does not have to be an exact job title, but employers still have to answer the question. If employers reference H.14 to answer the question in H.10-B, employers must be sure to answer the H.10-B question. Just providing a list of requirements is not acceptable.
Even after sharing that guidance with AILA, there were further reports of denials on question H.10-B through March of 2023.
As it stands, the OFLC has not offered clarity on the best way for employers to respond to question H.10-B on ETA 9098, but on March 14, 2023 the OFLC addressed the inconsistent adjudication related to this, and in cases where the PERM denial was solely due to the answer provided for Question H.10-B, the OFLC will give priority to the review process and approve the certification if deemed appropriate. Those employers who failed to submit a Request for Reconsideration (RFR) within the 30-day deadline following an H.10-B denial still have the opportunity to do so. It’s important to note that the OFLC is currently reviewing PERM denials issued in the fiscal year 2023 proactively, even if the regular RFR deadline has passed. Additionally, the OFLC is in the process of developing guidance on how to respond to Question H.10-B, which will be published soon.
We understand how important the PERM process is and the impact of an unfair denial. Our team will keep you abreast of how this develops and inform you of any necessary steps employers or employees need to take. If you have any questions related to your case, please feel free to reach out to us.