After Denial of PERM: Reconsideration, Appeal, or Re-File?21 Jul 2016
Originally published December 31, 2010, this MurthyDotCom NewsBrief has been updated for our readers.
The PERM labor certification process is lengthy and complex. While many receive good news at the end of the process, some PERM decisions are not favorable. The Murthy Law Firm often receives inquiries from individuals and their employers following their receipt of PERM denials. These employers and employees all have one overriding question: “What should we do now?”
Overview of Key Considerations
Most audited PERM cases have been pending for a long time – often close to two years. Thus, a denial can be devastating news. There are concerns about eligibility for H1B status extensions for foreign nationals who are close to or past their six-year limits. There are concerns about losing priority dates in cases that cannot succeed. There are questions as to whether appeals or requests for reconsideration are just a waste of time and money at this point. And of course, there is a great deal of frustration all around.
PERM applications can be denied for a variety of reasons that are beyond the scope of this article. Regardless of the reason for a denial, however, once a denial notice is received, there are important decisions to be made by the employer and employee.
Employer Options: Reconsideration or Review
After the issuance of a PERM denial notice by the DOL, the employer has thirty days to either: request reconsideration of the decision by the certifying officer (CO); or request review by the Board of Alien Labor Certification Appeals (BALCA). If the employer does not request either option within the thirty-day period, the decision will become final, and the employer will have no further opportunity to challenge the denial.
It is important to remember that only the employer (not the foreign national beneficiary) is allowed to request review or reconsideration of the denied PERM. An attempt by the employee to request review will be rejected without further action. Additionally, the costs associated with the challenge to the denial must be paid by the employer, as this is part of the PERM process.
Reconsideration by the DOL Certifying Officer
As explained, following denial of a PERM application, the employer may request reconsideration of the decision by the CO. This is essentially requesting that the individual who denied the case look at it again and reconsider the denial.
A request for reconsideration may be an employer’s last chance to submit (limited) additional evidence for consideration. By electing to proceed directly to BALCA, this opportunity is waived. It is normally better, therefore, to request reconsideration by the CO, unless there are compelling strategic reasons to proceed differently.
The motion for reconsideration must be submitted in writing to the CO. The employer may not submit completely “new” evidence, but is allowed to submit: copies of documentation already submitted to DOL in response to a DOL request and/or submit documentation that existed at the time when the PERM application was filed and that the employer is required to maintain under PERM regulations. Alternatively, the employer may elect to proceed directly to an appeal with BALCA.
Review or Appeal with BALCA
The decision to request review directly by BALCA can have important procedural consequences. Under the PERM regulations, as explained above, BALCA is only permitted to review documentation that has already been considered by the CO.
Motion for Reconsideration Could Become an Appeal
If the employer files a motion for reconsideration of the denied PERM application. The CO could grant the motion for reconsideration and reopen the denied PERM application. Alternatively, if the CO denies the motion for reconsideration and upholds the denial, the DOL will transmit a written notice of that decision. Thereafter, the employer can chose to appeal the matter to BALCA within a 3-day deadline. If the employer elects to proceed, the case is forwarded to BALCA for appellate review.
BALCA’s Options at Time of Review or Appeal
Once the appeal is docketed by BALCA, the employer and the DOL are allowed to submit a statement of position in support of their respective arguments. After receiving the position statements, BALCA has several options. It can uphold the CO’s decision, denying the PERM application, or it can overrule the decision of the CO and order the approval of the PERM application. It can also remand the case to the CO to review again, under limited circumstances. Finally, it can order a full hearing on the application before BALCA, in Washington DC, with all parties given the opportunity to appear and argue their positions.
Is BALCA Appeal Worthwhile When New PERM Application Can be Filed?
In truth, BALCA rarely reverses the decision of the CO. Unless the CO has made a clear error, it is generally unlikely that a BALCA appeal will succeed, given the inflexible nature of the PERM process. There are cases in which it is worthwhile to pursue the appeal, however, if there are viable arguments that the CO made an error.
Retention of PD and H1B Extensions – Overriding Factors
One of the driving forces behind the filing of BALCA appeals is the attempt to preserve the priority date. A BALCA reversal could save years of waiting time for a visa to be available. The waiting times for visa number availability can be many years. Thus, if there is no legal challenge to a denied PERM, the priority date (which may be several years old) will be lost. A new application will receive a new priority date. If the CO made a mistake, and the decision is challenged and approved, the earlier priority date will be preserved.
In some instances, it is worthwhile – even necessary – to challenge a PERM denial. A PERM application that is pending reconsideration or appeal is considered pending for purposes of obtaining extensions of H1B status beyond the six-year limit. A pending BALCA appeal allows the request for extension of H1B status. Of course, there must be a proper legal basis for challenging the denial in order to file an appeal or reconsideration request.
Cannot Appeal and Re-File with Same Employer
Another layer of complexity in this situation stems from a prohibition against the employer’s filing a new PERM for the beneficiary while the reconsideration or BALCA appeal is pending. A new PERM application can be filed if the BALCA appeal is denied, or the employer may withdraw the BALCA appeal at any time in order to file a new application.
Weighing the Options with Qualified Guidance
Given the limitations within the laws and regulations, there is a complex interplay of factors whenever a PERM case is denied. The beneficiary may need to continue to extend H1B status beyond six years and, thus, must continue to have a PERM case pending for at least 365 days. The beneficiary does not want to lose the priority date. The employer has concerns about the employee’s continued ability to work. The employer wants to salvage their investment in the PERM application. There are practical considerations and decisions about when to cut one’s losses rather than putting further effort, time, and expense into a case that is almost certainly destined for a final denial. If the PERM case is challenged, thought must be given to potential backup options. All of these concerns should be discussed in some detail with a qualified, knowledgeable immigration attorney. At the Murthy Law Firm, we regularly review such matters with employers and employees, and often provide second opinions as employers and foreign nationals struggle with the difficult choices.
Pending Audit or Appeal, Second Option Advisable
Our firm is often contacted by many individuals and employers who are surprised when their PERM cases are denied after being audited. Similarly, we have been contacted by others who pursued weak BALCA appeals and are faced with limited options upon receipt of the inevitable denial. This is particularly so in instances where there is no simultaneous pursuit of a backup plan. It can be a disastrous mistake not to have an alternate plan of action. One can be left without viable options for remaining in the United States.
To avoid these problems, it is advisable to obtain an unbiased second legal opinion on the merits of PERM cases under pending audit or BALCA appeal. This will help identify the risks in awaiting a decision. No one should assume that any case on appeal will be approved. Generally, few BALCA appeals are successful. The situation with audited PERM cases is much more hopeful, as a greater percentage reaches a favorable outcome and ends with approval. But, for many, it is not wise to simply wait – usually well over a year – under the assumption that everything is going to be fine.
Our legal team at the Murthy Law Firm can review pending cases and provide an opinion on the likelihood of success. We can also suggest additional, proactive steps that should be taken to establish a backup plan, if appropriate. This will serve to protect legal status in the United States and improve one’s chances of ultimately being granted permanent residence.
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