If a PERM petition is denied and an employer feels that the denial was in error, he/she may file a request for appeal. One such appeal is the Motion to Reconsider which is an appeal to the Certifying Officer (CO) to reconsider his/her decision based on the argument of a petitioner. A Motion to Reconsider can only be based on evidence that was part of the CO’s decision or which the employer did not have an opportunity to previously submit. There is also the option of a Motion to Reconsider when a denial is due to government error, such as when the CO incorrectly enters data or fails to acknowledge receipt of audit documents. Another type of appeal is a Request for Review in which the Board of Alien Labor Certification Appeals (BALCA) reviews the decision of the CO based on regulations and previous case law. All of these appeals, while potentially beneficial for the petitioner, add considerable time to the PERM process.
If an employer believes that a denial is a result of the DOL’s system error or misjudgment of a DOL officer, an employer may file a motion to reconsider with the DOL processing center that made the decision or file an appeal with the Board of Alien Labor Certification Appeals (BALCA). A motion to reconsider or an appeal most be filed within 30 days from the date of denial.
Appeals with BALCA usually take a long time until a decision is made. Once a case is sent to BALCA for review, NO new evidence will be accepted. All BALCA decisions are based on the evidence that was on file at the time the CO made his/her decision. There are times when it may be more advantageous to accept a denial and re-file a PERM petition rather than go through a lengthy appeals process, as it will take less time. Unless pressing non-immigrant visa issues require an approved PERM petition immediately, the appeal route may not be advisable.
In most instances, if an appeal is necessary, a motion to reconsider may achieve the same goal as a BALCA review, and the DOL may reconsider and approve the case if a strong legal argument is presented with solid support of the law. Our firm has had many successful experiences in filing motions to reconsider process and our strong arguments have saved numerous cases that had been denied. If you would like to talk to us about an appeal of a denial of a PERM labor certification application or a motion to reconsider, please contact us.
PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service.
(Updated 10/1/2012 by AD)
For more information on PERM Labor Certification, please refer to the following links:
PERM General Issues