Have you received a PERM denial? Wondering why your case was rejected without even receiving an audit?
A PERM denial without audit can seem like a devastating outcome after working tirelessly to submit all the required documentation and paying the accompanying attorney fees. Unfortunately, it’s a reality for many individuals who file PERM applications. In this post, we’ll explore the ins and outs of the PERM denial reasons including your available options, next steps, ways to refile, and more.
PERM Denial Reasons
First of all, there are a number of reasons you may have received a PERM denial in the first place. Some of the most common PERM mistakes that employers make which may result in a denial include:
Errors on the ETA Form 9089
Employers often fail to review all of the information submitted online through the DOL’s portal, and as a result, end up submitting the form with errors. This becomes a problem because the only way to correct these errors is to completely withdraw the application and refile it. As you can imagine this is a very lengthy and bothersome setback.
This also means that you need to make sure that the information on the ETA 9089 matches the information on the Job Order, Notice of Filing, and all job ads. Inconsistent information raises red flags with the DOL and may cause a PERM denial without audit.
Here is an example:
Employment Inc. placed a job order for an IT specialist that requires two years of experience and a bachelor’s degree in computer science and documented it on the ETA 9089. If the company also placed a job ad in a newspaper stating that the position requires a master’s degree in computer science and three years of experience, the DOL may outright reject the PERM on account of inconsistent information.
Not adhering to the advertising guidelines
The PERM process, as you likely know, has very stringent guidelines when it comes to advertising. One of those requirements being the strict timeframes for publishing ads in newspapers. For example, the Department of Labor denies all ETA 9089 forms if they see that the newspaper ad was not published on two Sundays. Remember, your advertisements can be published on two consecutive Sundays.
Because the job recruitment steps are strict and oftentimes confusing, be sure to work alongside a qualified immigration attorney as you go through this process.
Not responding to the email questionnaire
Another common error that often results in getting your PERM denied is when the employer fails to answer the questionnaire sent by the DOL following the electronic submission of the ETA 9089. These emails often go overlooked or perceived as spam. Note that this questionnaire must be replied to within 7 days of receipt or the case will be denied.
Not Including the Beneficiary’s Work Experience
When filing the ETA 9089 form, your employer needs to make sure to include your previous employers and supervisors as they relate to the kind of work you will be doing in the U.S. This should also detail your position titles, required skills, and dates that you were employed. Your employer also must not leave out the name and number of all of your past managers or supervisors.
Not keeping copies of PERM documents
One of the most important parts of any immigration process is keeping copies of the legal documentation. You absolutely need to have a file with duplicate copies of all forms submitted, correspondence with the DOL, and other attorney-related information. Not doing so can put your entire case in jeopardy should you receive a request for evidence or additional information from the DOL.
If you have recently received a PERM denial, take comfort in knowing that this is not the end of the road. There are additional options at your disposal which may still lead to a PERM approval.
Be aware, however, that any additional steps after receiving a PERM denial without audit are best handled by a seasoned professional. A PERM immigration attorney will be the foremost person to advise you on your particular case.
Will I Receive an Audit At All?
Although the case processing time varies, you’ll generally know whether your case is being audited or not within five or six months of filling your PERM online. It may also take up to a few weeks to receive the audit letter.
If you have been selected for a PERM audit you can expect the overall processing time to increase dramatically. Cases that are selected at random for audits take on average six more months from the time of responding to the audit. You can find a list and general information related to DOL processing times here.
Filing a Request for Appeal for PERM Denials
There are many reasons for PERM denial–which we briefly explained above. After a PERM denial has been issued in writing by the Department of Labor, the sponsoring employer has 30 days to make one of two choices. They can either make a request for the certifying officer to reconsider the decision OR make a request for a review by the BALCA (Board of Alien Labor Certification Appeals).
Again, these are the two options:
- Motion to Reconsider
- Request for Review
Be clear, if one of these requests has not been formally made within the 30-day time period then there will no longer be the option to challenge the PERM denial. Also, note that it is the employer’s responsibility to file a request for the motion to reconsider or request for review. The foreign national may not do so.
Any attempts made on behalf of the employee will be rejected. Furthermore, any fees or costs incurred to make a motion to reconsider or request for review shall be paid by the employer as it is associated with the PERM process.
PERM Denied Next Steps – Motions to Reconsider
The “Motion to Reconsider” involves requesting the Certifying Officer (CO) to reconsider the given decision. This would be completed through a valid argument from the petitioner. The argument is only considered valid if the petitioner provides proof of an inability to submit crucial documentation.
Another supporting factor would be if the petitioner contributes influential evidence that was taken into account at the time of the CO’s decision. The “Motion to Reconsider” may also be based on PERM denial due to CO or government error. This can be owed to inaccurate data entry from the CO or the lack of confirmation from the CO when documentation was received.
The petitioner may file the PERM denial appeal to the Department of Labor processing center or to the Board of Alien Labor Certification Appeals (BALCA). The “Motion to Reconsider” must occur within 30 days of denial date.
PERM Denied Appeal – Request for Review
The appeal is brought to the Board of Alien Labor Certification Appeals (BALCA) where the board can review the decision contingent on current regulations and prior cases. The “Request for Review” may be highly valuable, but the PERM process will take significantly longer.
The BALCA decision requires time to gather and analyze documentation submitted during the period of decision. When the appeal is filed to the BALCA, no additional evidence will be admitted. In some cases, the process would be more beneficial to just re-submit a PERM petition than incur the appeal process.
The “Motion to Reconsider” and “BALCA review” can both conclude with similar outcomes if the case argument is strong enough. If the case has substantial evidence and a secure legal argument, the Department of Labor is likely to reconsider the initial PERM denial. The PERM denial appeal is suggested if the petitioner is under a time constraint and needs an immediately authorized petition for a nonimmigrant visa.
PERM Denied Refiling Options
While a reconsideration or a BALCA appeal is processing, re-filing with the same employer after a PERM denial is not prohibited. If the BALCA appeal gets denied then re-filing a PERM application is allowed or your employer can choose to withdraw the appeal with the BALCA at any point in order to file a new PERM application. You need to evaluate the pros and cons of each choice alongside an immigration professional before making a final decision.
How a Reconsideration May Turn Into An Appeal
When the sponsoring employer files a motion for reconsideration, the certifying officer can either grant the motion for reconsideration and subsequently reopen the denied PERM case OR deny the motion to reconsider and instead treat it like a request for a BALCA review. If the latter is selected, then your case will be forwarded to Board of Alien Labor Certification Appeals for an appellate review.
After the appeal has been taken on by the BALCA, it is the employer and the DOL’s right to submit a statement in support of their arguments for approving the case. Once the BALCA has received any and all position statements they can then support the certifying officer’s denial of the PERM or opt to overrule it and approve the PERM application (They may also request to remand the case for additional review). Last, but not least, a complete hearing may be ordered in front of the BALCA with all parties present to make their case.
PERM Denial Frequently Asked Questions (FAQs)
Q. Will My PERM be Denied If My Employer is a Startup or Nonprofit Organization?
If your employer is not currently earning a profit, either by virtue of being a non-profit organization or by being in the beginning stages of the business, then you can still obtain a PERM Labor Certification. However, your employer will need to demonstrate that they are able to pay you the prevailing wage.
Q. Will my PERM be denied if my employer goes out of business?
Yes. If your employer is going out of business, then the best thing to do would be to find a different sponsoring employer. Even if the PERM is secured before the company goes out of business, only that employer can file your I-140. You will still need to find a new employer and restart the PERM process.
Q. Will leaving the U.S. during the PERM process affect my approval chances?
Fortunately, traveling abroad will not hurt your chances. However, you will need to have a visa to be allowed to re-enter as having a pending PERM application does not grant you entry. Not being able to return to the U.S. may present serious issues for the completion of your green card process.
How Our Immigration Lawyers Can Help:
- At SGM Law Group, our PERM Labor Certification lawyers can assist with both options of the PERM denial appeal whether it be gathering documentation or conduction an analysis of your individual PERM case.
- Our team has gained approvals for hundreds of PERM cases as well as appeals.
- We know the most effective strategies that result in approvals even after a client has received a PERM denial without audit.
Receive a PERM Consultation
In order to best advise you about cases involving PERM denial, you’ll need to schedule a consultation with one of our PERM attorneys. We offer competitive PERM fees and will work one-on-one to ensure the most advantageous course of action is selected–whether it be a request for review or motion to reconsider.
Our Fort Lauderdale lawyers have handled hundreds of PERM processing cases and know the most effective strategies to gain an approval whether you’ve received an audit, PERM denial without audit or request for additional information. If you have additional questions related to a PERM denial appeal or PERM denied options then give us a call today to get started!