If a PERM labor certification is denied and an employer suspects an error resulted in the denial, then an appeal may be in order.
Types of Appeals
One type of appeal is a Motion to Reconsider (MTR), which is made to the U.S. Department of Labor (DOL) Certifying Officer (CO) in the hope that he or she will reconsider the denial based on the petitioner’s argument. An MTR must be based on evidence that the CO considered when denying the petition, or evidence that the employer did not have the opportunity to previously submit. A sponsoring employer additionally has the option of submitting an MTR when it suspects administrative errors may have occurred during processing, such as when a CO incorrectly enters data or fails to acknowledge receipt of audit documents.
A second type of appeal is known as Request for Review, during which the Board of Alien Labor Certification Appeals (BALCA) reviews the decision of the CO based on regulations and previous case law.
Each of these appeals, while potentially beneficial for the petitioner, adds considerable time to the already lengthy PERM process.
Timeframes and Process
If an employer believes a denial stemmed from a system-related error or the misjudgment of a DOL officer, then it can file an MTR either with the processing center that made the decision or with BALCA. Irrespective of to whom the MTR is addressed, it must be filed no later than 30 days after the date of denial.
Appeals with BALCA typically take a significant period of time. And by “significant,” we mean three to four years. Importantly, once BALCA reviews a case, the employer cannot submit any new evidence: BALCA’s decisions are made on the basis of evidence on file at the time the CO rendered a decision. There are times when it may be more prudent to accept a denial and re-file a PERM petition rather than go through the lengthy appeals process. Unless pressing nonimmigrant visa needs require an approved PERM petition immediately, the appeal route may not be advisable at all. An expert PERM legal team can advise you on the best course to take.
In most instances, if an appeal is necessary, an MTR may achieve the same goal as a BALCA review, and DOL may reconsider the denial and approve the application if a strong legal argument is presented. Our firm has extensive experience filing MTRs on behalf of PERM clients, and our strong arguments have saved countless cases that had been denied.
Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.
For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links: