WORK VISAS: PERM Application Denied. What now?
PERM certification (also known as “labor certification”) is one of those immigration processes that tend to be expensive and time-consuming, so receiving a denial letter is certainly a big deal for both the employer and employee. The first thought will likely be “appeal,” especially where the denial letter seems to contain factual errors or faulty logic – which is not uncommon.
The purpose of this article is to outline the options available when a PERM petition has been denied and briefly describe the relevant processes.
Reconsideration by Officer or Review by Board
The employer, who is technically the petitioner, has 30 days from issuance of the denial notice to request reconsideration by the certifying officer who made the decision (the “CO”) or review of the CO’s decision by the Board of Alien Labor Certification Appeals (the “BALCA”).
It is important not to miss this deadline because, if no request is made within the 30 days, the decision becomes final and there will be no further opportunity to challenge.
Also note the request for review must come from the employer, not the employee. If the employee tries to request review, the request will be rejected and there will be no further action. By the same token, costs associated with the challenge must be paid by the employer, not the employee.
Reconsideration by the Certifying Officer
The lowest level of review is a request for reconsideration by the officer who issued the decision. Essentially, you will respond to the points in the decision that you think are incorrect. This is your last chance to get the decision reversed without the time and expense involved in appealing to the BALCA, so care should be taken when putting together the request for reconsideration.
If you did not hire an attorney previously, this would certainly be the time to bring one on-board. This will be your last chance to provide supporting documents.
You can put together a memorandum and attach copies of documents that support your arguments. Focus specifically on the the points raised by the CO in the denial. Make the memorandum extremely well-organized and easy to follow. Remember, the CO has a lot of work and has already been through your petition. He/She is not going to be excited about spending additional time on your file. Make it as easy for the CO as possible.
Also, attach copies of all documents that support your arguments. Do not provide links or reference documents in the public record. The CO is not likely to make that kind of extra effort. It is up to you to provide the CO with everything needed to make an informed decision.
You do have the option of skipping the reconsideration and appealing directly to the BALCA. Unless you are very experienced — and quite confident in your position — skipping reconsideration is probably not a good idea. Instead, even if you think the CO cannot be persuaded, you will probably still want to take this opportunity to get additional information and supporting materials in the record.
Review by the BALCA
If your request for reconsideration is unsuccessful, then the only thing you can do is appeal to the BALCA. This is where things get more technical and tricky. If you still have not brought in a lawyer, you should really do so at this stage.
For one thing, the legal standard changes now. It is no longer so much about proving that you qualify for labor certification as it is about proving the CO made a mistake. So, for example, you are not allowed to provide new documents or information for consideration. (Or, at least, you had better be subtle.) The BALCA will not consider new materials on appeal.
Your challenge is to show the BALCA that you (i) followed all the correct procedures, and (ii) gave the CO all the correct information and documents, yet — in spite of your doing everything right — the CO made the wrong decision.
Again, mind the 30-day deadline to file your appeal.
There are three things the BALCA can do with your appeal:
- Uphold the CO’s decision and deny your appeal. If this happens, you are pretty much back to the drawing board. Either you need to do a better job of following the procedures and/or putting together the petition, or you may, in fact, not be a good candidate for labor certification. You will need to re-evaluate your situation and consider other possible approaches.
- Reverse the CO’s decision and grant your labor certification. In that case, the BALCA will order the CO to issue the certification, and you can celebrate.
- Set a hearing. This is rare, but the BALCA could require the parties to go to Washington DC to argue their respective positions.
In reality, the percentage of cases that get reversed on appeal is rather low. That is not to say CO’s don’t make mistakes. They most definitely do. However, the standard for reversal is quite high so, even if you have a good argument, there is certainly no guarantee of success. Nonetheless, there could be some strategic reasons for appealing a denied PERM application.
For one thing, if you simply put in a new petition, your original priority date will be lost. So, if you have to wait for a visa to become available, losing your priority date could cause years of delay. Another consideration is H-1B Extensions.
A denied PERM petition that is under review is considered “pending” and can serve as a basis for obtaining an extension of your H-1B status.
Finally, give some careful thought to putting in place a backup plan. There is often more than one path to the same goal and, given the situation, it would be unwise not to at least meet with an HLA immigration attorney to go over your options.