It is not uncommon to find your PERM application being rejected for several reasons, that too without a perm audit. Such a scenario can be exhausting and extremely tough to handle without professional guidance.
In this article, let us try to break down the reasons for perm denial without an audit while understanding how you can file an appeal and save your dream of working in the USA.
First of all, a PERM denial without audit can happen for several different reasons. Some of the most common mistakes that employers make with PERM petitions that can lead to denial are listed below.
Common mistakes that employers make with PERM applications that lead to perm denial without audit:
- The ETA Form 9089 has mistakes.
- Employers often don’t check all of the information they submit online while PERM submitting through the DOL’s portal before sending in the form ETA Form 9089. As a result, the form is often sent in with mistakes.
- This is a problem because the only way to fix these mistakes is to take the application back and start over. As you might guess, this is a very long and annoying roadblock.
- This also means that you need to make sure that the information on the ETA 9089 matches the information on the Job Order, the Notice of Filing, and all job ads.
- Information that doesn’t match up sends up red flags for the DOL and could lead to a PERM rejection without even an audit.
ILLUSTRATION
Here’s an example for your understanding
The Employer put in a job order for a legal research specialist who needs two years of experience and a JD degree. This was written down on the ETA 9089.
If the company also posted a job ad in a newspaper saying that the job requires a master’s degree in law and three years of experience, the DOL may reject the PERM right away because the information isn’t consistent.
- Not obeying the guidelines for advertising. As you probably know, the PERM process has very strict rules about advertising. One of these rules would be that ads have to be in newspapers by a certain date.
Because the steps for getting a job are strict and often hard to understand, you should work with a qualified immigration lawyer as you go through this process.
- Choosing not to answer the email questionnaire. Another common mistake that can cause your PERM to be turned down is when the employer doesn’t answer the questionnaire sent by the DOL after the ETA Form 9089 is sent electronically. Most of the time, these emails are ignored or thought to be spam.
Note that this questionnaire must be answered within 7 days or the case will be denied.
- Leaving out the beneficiary’s work history. When your employer fills out the ETA Form 9089 form, PERM regulations require you to include information about your previous employers and supervisors that is relevant to the work you will be doing in the U.S.
- This should also list your job titles, the skills you needed for each job, and the dates you worked there.
- Your employer also can’t leave out the names and phone numbers of all your previous managers or bosses.
- PERM documents are not kept on file. Keeping copies of the legal documents in the file is one of the most important parts of the immigration process.
- You must have a file with copies of all forms submitted, letters to and from the DOL, and other information related to lawyers.If you don’t do this, your whole case could be in danger if the DOL certifying officer asks you for proof or more information.
Who Can Take Action Against PERM Denial Without Audit?
If you just got a PERM denial, take heart in the fact that this is not the end of the road. There are other things you can do that could still lead to a PERM approval.
Be aware, though, that any steps you need to take after getting a PERM denial without an audit are best done by a professional with a lot of experience. A PERM immigration lawyer is the best person to talk to about your specific case as a foreign worker.
PERM Application: Alien Labor Certification Appeals
There are many reasons why an employer filed PERM petition is turned down, which we touched on above. After the Department of Labor sends a written PERM denial, the sponsoring employer has 30 days to do one of two things.
- They can either ask the certifying officer to think about the decision again or ask the BALCA to look into it (Board of Alien Labor Certification Appeals).
- Request for Review against denied PERM application.
Limitation For Filing Appeal Against Perm Denial
Make sure you understand that you will no longer be able to challenge the denied PERM petition if one of these requests has not been made in writing within 30 days.
Who Can File The Appeal Appeal Against PERM Denial?
Also, keep in mind that the employer files the motion to reconsider or request for review. This is not something a foreigner can do.
In case the employer fails to do so, the appeal will not be accepted. Any attempts made on the behalf of the employee will be turned down.
Who Pays The Fees For The Appeal?
The petitioning employer has to pay for any fees or costs that come with making a motion to reconsider or a request for review since this is part of the regulatory requirements.
Reapplying with the same employer after a PERM denial is not forbidden while a reconsideration or BALCA appeal process is being executed.
If the BALCA appeal is denied, it is the employer’s responsibility to re-submit a PERM application, or your employer can submit a new PERM application.
The certifying officer can either provide the motion for reconsideration and reopen the particular case OR deny the motion to reconsider and treat it as a request for a BALCA review. If the second option is chosen, your case will be sent to the Board of Alien Work Certification Appeals for a review of an appeal.
After the BALCA has heard the appeal, the employer and the DOL can make a statement to back up their reasons for approving the case.
Once the BALCA has received all position statements, it can either agree with the certifying officer’s decision to deny the PERM or decide to go against him or her and give approval.
Appropriate Time For This Process?
Even though the time it takes to process a case varies, you’ll usually know within five or six months of filling out your PERM online if your case is being audited or not. The final decision or the audit letter could also take up to a few weeks to arrive.
If you’ve been chosen for a PERM audit, you can expect that the whole process will take a lot longer. Audits of cases that are chosen at random take an average of six more months after the answer to the audit.
How Can Herman Legal Group LLC Help You?
A consultation with us can bring you peace of mind and together we can cultivate a winning strategy.
Contact the Herman Legal Group, a U.S. immigration law firm with over 26 years of experience in representing individuals, families, and companies in all aspects of immigration law, in all 50 states and around the world.
How To Schedule An Appointment With Herman Legal Group LLC?
Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.
A small investment in seeking a consult can save thousands of dollars and years of frustration due to taking action without the advice of experienced immigration counsel.
The Herman Legal Group respects your valuable time and resources, and we will not conduct a one-hour consultation unless they believe they can provide critical information and hopefully a path to immigration success.
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