DOL Modifies Procedures to Challenge PERM Denials

As of October 27, 2014, the U.S. Department of Labor (DOL) has changed the procedures for processing challenges to PERM labor certification (LC) denials. These changes alter the manner in which the DOL routes a case once the employer submits a request for reconsideration to the DOL certifying officer (CO). More specifically, in situations where the CO upholds the denial, the DOL will no longer automatically route the case to the Board of Alien Labor Certification Appeals (BALCA).

Prior DOL Procedure

If the DOL issues a denial on a PERM LC case, the employer has the option of either requesting reconsideration of the decision by the CO, or requesting review of the denial by BALCA. Until October 27th, if an employer requested reconsideration by the CO, and the CO upheld the denial, the case would have been automatically appealed to BALCA.

Extra Step Required to Move Case from CO to BALCA

Following the denial of an LC, an employer is still permitted to submit a request for reconsideration to the CO, or bypass the CO and file a request for review directly with BALCA. If, however, the employer submits the case to the CO, and the CO upholds the denial, the case will no longer be sent automatically to BALCA. Rather, the employer will be notified of the decision in writing and given 30 calendar days to appeal the decision to BALCA.

Criteria and Process for Requesting Reconsideration

The general rules that apply to requests for reconsideration remain unchanged. Such requests can only be supported by evidence that was already part of the case. This includes evidence previously submitted to the DOL as well as documentation that the employer was not given the opportunity to present, but which existed at the time of filing the LC and was properly maintained in the compliance file.

Conclusion

Although no substantive rights have been taken away by this process change, it does create an added burden on employers. Only time will tell how this change may impact processing times for LC cases.

Copyright © 2014, MURTHY LAW FIRM. All Rights Reserved