DOL Reviews PERM Denials Based on Answers to Question H.10-B17 Apr 2023
The U.S. Department of Labor (DOL) has agreed to review denials of ETA form 9089, application for permanent employment certification (PERM labor certification) based on question H.10-B, which asks employers to identify an acceptable alternate occupation in which applicants could gain prior qualifying experience. After prolonged inconsistent adjudication of answers to question H.10-B, the DOL’s Office of Foreign Labor Certification (OFLC) has agreed to prioritize reviews of PERM denials based solely on answers to this question.
Overview of Form 9089, Question H.10-B
The PERM process requires employers to identify the minimum requirements of the permanent position offered to the foreign national to test the labor market for qualified U.S. applicants. If a position requires prior experience, the employer must identify the occupation in which applicants must gain the experience. Employers typically require experience in the same occupation as the job offered. If an employer is willing to accept experience in an alternate occupation, then question H.10-B of form 9089 requires employers to “[i]dentify the job title of the acceptable alternate occupation.”
DOL’s Recent Inconsistent Adjudication of Answers to Question H.10-B
The DOL’s OFLC has not issued guidance on how employers should answer question H.10-B on ETA 9089 and previously approved PERM applications. Since the fall of 2022, however, PERM denials related to question H.10-B have spiked without any explanation. These denials have prolonged many employers’ PERM processes and have left employers at a loss as to how question H.10-B should be answered to ensure the certification of a PERM application.
DOL Agrees to Review Denials Based on Answers to Question H.10-B
On March 14, 2023, the DOL’s OFLC acknowledged its inconsistent adjudication of question H.10-B and agreed to review certain cases denied solely based on responses to question H.10-B. The OFLC will review applications if employers file a request for reconsideration (RFR) based on an H.10-B denial. If the sole reason for the denial was based on the response to question H.10-B, then the OFLC will prioritize its adjudication of the PERM and certify it, if appropriate.
Employers who have not yet filed an RFR within the 30-day deadline of an H.10-B denial may do so. Importantly, the OFLC has indicated that it is proactively reviewing PERM denials issued during fiscal year 2023 for this issue, even if the usual deadline for filing an RFR has passed. Moreover, the OFLC has indicated that it is developing guidance on how to answer question H.10-B, which will be published in the near future.
A PERM denial can significantly delay a foreign national’s green card process. The DOL’s willingness to review denials based on responses to question H.10-B PERM is welcome news for employers and employees.
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