PERM was denied - Next steps & Options
We’re hearing a lot about PERM denial these days. And I understand that it can be quite an ordeal to get a PERM denial. It means that you’ve already spent a good amount of time in the country and in many cases you’re nearing your 6 year limit on H-1B visa and suddenly this denial can be quite devastating. But all is not lost yet.
Because in this article we will discuss what options you may have if your PERM was denied recently.
We're starting a new series of videos, blogs and podcasts titled US Visas Simplified where we explain different US visas and their processes in a way that it's easier to understand. We also promise to keep it free from jargons as much as possible.
What is a PERM
Before we deep dive into the entire topic let’s first understand what a PERM is.
Simply speaking PERM is a process through which the Department of Labor tries to figure out whether a company by hiring you is preventing an equally capable US worker from getting a similar job.
In simple languages, they are trying to understand if you’re taking away jobs from a US citizen.
Now that we understand what PERM is, let’s try to understand what are some of the reasons why the PERM can be denied and then we’ll move on to options if your PERM is denied.
Reasons for PERM denial
Now, your PERM can be denied either without an audit or after an audit.
You may ask, who does this audit?
How does that matter? But for your information, It’s actually done by the Department of Labor (DOL).
If the PERM is denied without even an audit, in most cases it means that there was a mistake in the form or the documentation provided while filing the form.
To avoid this, please make sure that the form is filled correctly. All the information shared in the form matches the information on the Job Order, the Notice of Filing, and all job ads.
A couple of other reasons for PERM denial include:
The employer forgets to answer the email questionnaire sent out to them after filing the form electronically
Incomplete information about your work history which includes details of your previous job titles, managers and even their contact details.
Reasons for denial after a PERM audit
But first, what is an audit?
It is basically the Department of Labor asking for specific documents that may require to verify certain claims in your application.
In other words it’s an RFE for PERM. Thought it is not exactly the same. The analogy is just to make you understand it.
Like most such audits in the US, it could either be targeted or random. If it is targeted then it means that there’s really some documentation either missing or unclear to them and you need to share the required information.
Many things can trigger a PERM audit. Below are some examples.
What triggers a PERM audit?
• job posts with trade-related issues
• job post with a minimum education requirement of less than a 4-year degree
• job posts that require a degree but no experience
• instances where employer indicates recent layoff
• applications submitted by the same employer/employee who received a denial within the last year
• applications submitted by the same employer/employee who made a withdrawal in response to an audit case within the last year
Now that we’ve discussed most of the reasons behind a PERM denial, let us discuss what options do you have after a denial.
Options after a PERM denial
Request for Reconsideration:
This is exactly what it means. You are officially requesting the certifying officer to consider your cases once again. Like, “ek baar firse dekh lo na. Kuch galti ho gayi hogi aapse. Sab theek hai meri taraf se”.
Your employer needs to file this request within 30 days of receiving a denial.
In this request, the employer can only include the original documentation that was already submitted previously and some documentation that existed at the time the PERM was filed but the employer did not have a chance to present. The employer cannot submit additional documentation that would alter the PERM.
If this Request for Reconsideration is denied, the employer will receive a Notice of Decision.
The employer then has the option to file a Request for Review. It is called BALCA: Board of Alien Labor Certification Appeals (BALCA.) Americans and their love for acronyms.
This request too has to be submitted within 30 days from the date of denial of the previous request.
You can decide to skip the first request for reconsideration and directly submit a request for review. The condition is the same - within days of denial.
In the Request for Review, the employer can only submit legal arguments and documentation that was already submitted to the Certifying Officer previously.
It is important to note that a Request for Reconsideration and Request for Review cannot both be filed at the same time. But in case a Request for Reconsideration and Request for Review are both filed at the same time, it will be treated as a Request for Reconsideration.
If the review appeal is denied, it is the employer’s responsibility to re-submit a PERM application, or your employer can submit a new PERM application.
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 them and give approval.
You can’t do all of this by yourself. So, please make sure you or your employer has hired a great immigration lawyer.
Who pays the fees for PERM Review or Refiling?
Your employer has to pay any fees or costs including those for filing a request for review or reconsideration or if they decide to refile your PERM.
Another option that you have is to refile your PERM
Reapplying with the same employer after a PERM denial is also an option.
And you can do that while a reconsideration or the review (BALCA) appeal process is being executed
Ok, I know this is all very confusing.
So, I will just summarize all your options if your PERM is denied;
You can file a request for reconsideration
If denied you can file a request for review with BALCA
You need to file either of this within 30 days of denial.
If you file both together it will be considered as a request for reconsideration
While under review with BALCA, you can file a fresh PERM application too.
I hope this was helpful.
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Until then, if things aren’t going your way, It’s Ok Yaar. It soon will.