If you are an employer in the United States and looking to hire a foreign worker permanently, you probably know that you will need a Permanent Labor Certification (PERM) to sponsor a foreigner for a green card. It is through the PERM process that it’s proven that there are no willing, skilled U.S. workers for the position, so the employer may recruit a foreigner.
But keep in mind, that a PERM application can also get denied. That can be frustrating and overwhelming, but the good news is you don’t have to. Here we’ll talk about what to do if your PERM application is denied in this article.
1. Check Reason for Denial
You must start by reading through the Reasons your PERM application was denied to be sure what exactly the Department of Labor (DOL) is saying in its Notice of Denial. In the notice, they will let you know why they have not accepted your application, usually with details of the failure.
Common reasons for PERM denial are:
- Documentation incomplete or false: Forgotten forms or wrong data can delay or reject your application.
- Recruitment process not complete: If you didn’t go as far as you needed to with your recruitment for US workers or if it was not up to par, this could be the reason for rejection.
- Problems with job advertisements: A denial also occurs when you don’t post ads on the right pages and at the right time.
The more information you know about why your application was rejected, the better prepared you will be for what can be fixed or explained before proceeding.
2. Request Reconsideration
Reconsideration is available if you feel the rejection was inaccurate or the DOL made a mistake in the review process. To do this, you have to request within 30 days of the denial notice.
To do this, you will need to:
- Explain in detail and carefully why you think the decision was wrong.
- Provide any proof or corrected details that can resolve the problem.
- Reconsideration doesn’t make you accept but it gives you a chance to make things rigor correct an error or perhaps overturn a rejection.
3. File an Appeal with BALCA
Once the reconsideration is denied or 30 days have passed, you can appeal to the Board of Alien Labor Certification Appeals (BALCA).
BALCA is an independent reviewer of PERM denials and can reverse the DOL’s decision if they think your case merits it. However, the appeal must be filed in a very limited time within the procedures and deadlines defined by BALCA. If you miss the deadline or don’t get the procedure right, your appeal may be rejected.
4. Explore Other Immigration Options
Until your reconsideration or appeal goes through, look at other immigration routes. Other employment visas may be available that don’t need a PERM certification, depending on the foreign worker’s credentials. Some alternatives include:
- H-1B visa (for specialty workers)
- L-1 visa (for intracompany transferees)
- O-1 visa (for extraordinary talent)
You can also reapply for the PERM after fixing the reasons why it was denied in the first place. A reworked application with the needed updates might help your chances of winning.
5. Seek Expert Legal Help
Dealing with a PERM denial can be an intractable, time-consuming undertaking so it’s best to work with an immigration lawyer. An experienced immigration lawyer can:
Inform you of the specifics of the denial.
- Explain how to appeal/reconsider.
- Advise on alternative visa options.
- Save you from making the same mistake in the future.
If you have a lawyer who is there to assist you, then the chances are that the process will work out for you and the problem will not be an emotional issue.
How to Receive the Disapproval Notice
When a PERM (Program Electronic Review Management) application is disapproved, employers can expect to receive a notice from the Department of Labor (DOL) detailing the reasons for the denial. This notice typically includes specific denial codes that indicate the grounds for disapproval, which can range from procedural errors to substantive issues related to compliance with labor certification requirements.
What to Expect in the Disapproval Notice
- Notification: The DOL will send a formal disapproval notice, usually via mail or electronically, depending on how the application was submitted.
- Denial Codes: The notice will include specific denial codes that correspond to the reasons for disapproval. These codes help employers identify the exact issues that led to the denial.
- Detailed Explanation: The notice will provide a detailed explanation of the reasons for denial, which is critical for understanding what went wrong and how to address it.
Reading and Interpreting the Disapproval Notice
Understanding the disapproval notice is essential for determining the next steps:
- Identify Key Issues: Focus on the specific denial codes and explanations provided. This will help clarify whether the issues were procedural, such as missing documentation, or substantive, like failure to meet labor market requirements.
- Assess Compliance: Determine if the disapproval was due to non-compliance with legal requirements or misunderstandings about DOL regulations.
Reviewing the Reasons for Denial
Once you receive the disapproval notice, it’s crucial to carefully assess the DOL’s reasons for disapproval:
- Assessing DOL’s Reasons: Review each reason provided in detail. Common reasons include inadequate recruitment efforts, failure to meet prevailing wage requirements or discrepancies in job descriptions.
- Verifying Errors: Check if the disapproval was due to procedural errors or misunderstandings. For example, if recruitment efforts were not documented correctly, this could lead to a denial based on noncompliance.
- Gathering Documentation: Collect any relevant documentation that addresses the issues raised by the DOL. This may include recruitment records, job postings, and evidence of compliance with wage determinations.
Steps to Take Immediately After a PERM Denial
After receiving a PERM denial, prompt action is necessary:
- Filing a Request for Reconsideration: If applicable, employers can file a request for reconsideration with the DOL. This must be done within 30 days of receiving the disapproval notice.
- Understanding Timing and Procedures: Familiarize yourself with the timing and procedures for filing an appeal or request for reconsideration. The timeline can vary based on specific circumstances surrounding each case.
- Key Documentation for Reconsideration: Include all relevant documentation and evidence that supports your case when filing a reconsideration request. This should directly address the reasons stated in the disapproval notice.
Filing an Appeal for a Denied PERM Application
If reconsideration is not successful or applicable, employers have another option:
- How to File an Appeal: Appeals can be filed with the Board of Alien Labor Certification Appeals (BALCA). This involves submitting Form 9089 along with any supporting documentation that addresses DOL’s concerns.
- Legal Requirements: Ensure that all legal requirements are met when filing an appeal. This includes adhering to deadlines and providing comprehensive evidence that counters the reasons for denial.
- Timeline and Outcomes: The appeal process can take several months, and potential outcomes include approval of the appeal or upholding of the original denial.
Refiling a New PERM Application
Employers may also choose to submit a new PERM application after a denial:
- Immediate Refiling Options: Unlike previous labor certification systems, there is no waiting period after a denial before submitting a new PERM application.
- Avoiding Previous Mistakes: Analyze what led to the initial denial and take steps to avoid similar mistakes in your new application. This includes ensuring compliance with all recruitment and wage determination requirements.
- Improving Recruitment Efforts: Enhance your recruitment strategies by broadening outreach efforts or refining job descriptions to align more closely with DOL expectations.
Workaround Options for Employment-Based Green Cards
If a PERM application is denied, there are alternative pathways:
- Changing Job Classifications: Explore options for changing job classifications or employer sponsorship if feasible within your organization’s structure.
- Alternative Visa Programs: Consider other visa programs such as H-1B or O-1 visas that may allow employment while addressing issues related to PERM processing.
An unsuccessful PERM application is always disappointing, but don’t give up hope. These are the things you can do to fix the issues, try other alternatives, and possibly get your application approved. Know why the rejection is happening and also demand reconsideration or appeal the decision. In the meantime, Find other immigration routes to take and Contact a lawyer for the best opportunity at success.
Even if you do not prepare or know everything upfront, you will still be able to go through the PERM and get your foreign workers a green card so they can work in your business and have key positions in your business.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for an EB-2 Visa or an L-1 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you
