The PERM labor certification is the first step for an employer looking to hire a foreign person to work permanently in the United States. An approved labor certification from the Department of Labor proves no qualified U.S. citizens are available to occupy the position offered. However, PERM applications are often denied due to errors and noncompliance with complex regulations.
Learning why denials happen and what your options to overcome them are is essential to eventually achieving certification.
Why PERM Labor Certifications Get Denied
Several common problems can lead to PERM denials, from incorrect documentation to mistakes in the recruitment process. Being aware of these frequent issues helps employers avoid application rejections.
Incorrect Information on ETA Form 9089
The ETA Form 9089 is the main application used for the PERM process. Any errors or inconsistent information provided on this form can instantly trigger denials. Double and triple-check that all job requirements, duties, employer details, recruitment information, and prevailing wage match on all documentation.
Inadequate Job Requirements
Job requirements that are too broad, general, or do not match the sponsoring employer’s actual minimum requirements may raise red flags. Make sure all educational, experience, special skills, and other qualifications are justified and specific. Overstating or inflating requirements in hopes of disqualifying U.S. applicants is not permitted.
Errors in the Recruitment Process
The PERM recruitment process must fully test the U.S. labor market in good faith before applying. Any issues, such as insufficient advertising, missing documentation, incorrect timelines, or erroneous steps, can lead to denials. Strictly follow all complex advertising rules and be ready to provide full documentation proving compliance.
Unjustified Job Requirements
All job qualifications must be standard, normal, or accepted industry-wide requirements, not customized to exclude U.S. applicants arbitrarily. Unfamiliar acronyms, exaggerated experience timeframes, and other unjustifiable requirements will be denied.
Failure to Obtain Prevailing Wage
Accurately researching and obtaining the prevailing wage for the position in question and area via the National Prevailing Wage Center is mandatory. Errors or failure to obtain the prevailing wage determination from the Department of Labor will lead to instant denial.
Insufficient Recruitment Period
PERM recruitment steps must run at least 30 days but not longer than 180 days before submitting the ETA 9089 application. Advertising the job opening outside the mandated timeline shows improper testing of the labor market and often triggers denials.
Lack of Response to Audits or Requests for Evidence
If the Department of Labor selects your PERM application for an audit, resolving any identified issues or providing requested evidence is essential for approval. Insufficient, incomplete, or late responses typically lead to denials. Respond to any requests urgently and thoroughly.
How to Overcome a Denial
Receiving a PERM denial does not mean the process is finished. Employers have multiple ways to resolve the situation, from requesting reconsideration to looking at other immigration options.
Request Reconsideration
Luckily, receiving a denial does not permanently end the PERM process. The first option is for the employer to request that the certifying officer reconsider the decision. This request must occur no later than 30 days after receiving the initial denial notice.
In the reconsideration request letter, the employer should explain in detail why they believe the denial was unwarranted under the circumstances or correct any factual errors made by the certifying officer. Supporting documentation is helpful when stating the case.
If successful, the officer reopens the case for further review. However, if the officer denies reconsideration, the case gets forwarded automatically to the Board of Alien Labor Certification Appeals (BALCA) for an administrative appeal.
Appeal to BALCA
The BALCA functions as an appellate body that conducts administrative reviews of PERM denials. While reconsideration involves the original deciding officer reviewing their decision, the BALCA allows a neutral third party to assess if the denial conformed to labor certification regulations.
In the request for review submitted to the BALCA, the employer must state why they believe the denial violated labor certification statutes and regulations. They may argue the denial lacked necessary factual support or legal basis.
One downside is that no new evidence can be introduced during the BALCA appeal. The review relies solely on documents included with the initial ETA Form 9089 submission. However, position statements from the employer and DOL are allowed to support arguments.
In some cases, an in-person hearing occurs with testimony if the BALCA requires further probing of the facts.
Ultimately, the BALCA may decide to overturn the denial and certify the PERM application if the employer’s arguments demonstrate merit. However, the BALCA may also uphold the original denial. At that point, the only remaining options are to refile or look at alternative visa routes.
Refile the PERM Application
Although some employers await the outcome of a PERM appeal or BALCA review before deciding what to do next, regulations allow concurrently refiling. An employer may submit an entirely new PERM application if addressing any deficiencies found in the initial case.
For instance, errors found on the ETA Form 9089 can be corrected in a new application. Improving the documentation around job duties and requirements may also help overcome a prior denial.
The employer may withdraw the appeal or reconsideration request if the path of refiling with an amended application seems more efficient. However, each situation differs, so employers should weigh options carefully and account for processing times.
Consider Other Immigration Avenues
A denied PERM cuts off one potential road to U.S. immigration but does not necessarily mean the foreign worker has no other options.
In special cases, the foreign employee may find eligibility under employment-based categories that do not require PERM labor certification, such as extraordinary ability or national interest waiver green cards.
Pride Immigration Can Pave the Way After a PERM Denial
Going through the often unpredictable PERM process can prove challenging, even for seasoned immigration specialists. Pride Immigration has extensive hands-on experience guiding employers and foreign nationals through successful labor certification applications.
If you receive the unfortunate news of a PERM denial, do not lose hope. Our team can help assess your options, appeal wrongful denials, or help prepare an airtight refiled application for the best chance of approval.
Contact us today at (703) 594-4040 or online to book a consultation.
Beeraj Patel, Esq.
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