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PERM Denials: When "No" Doesn't Necessarily Mean "No"

by Carl Shusterman

When the Department of Labor introduced the new PERM system last year, everyone expected growing pains. Nobody anticipated, however, such a troubled, idiosyncratic system. While our office's success rate has thus far been very high, we've been faced with a number of denials typical to many Practitioners.

Initially, these denials fell into two categories: Those based on Attorney, Agent or Employer error, and those arising from DOL computer programming glitches-denials automatically issued as a result of certain response combinations on Form ETA-9089.

Specifically, the DOL programming denials occurred when:

  • "The alien's qualifications listed on the application do not meet (the minimum requirements stated on the application." In these cases, the answer to question H.6 (Is experience in the job offered required for the job?) was "yes," and the answer to question H.10 (Is experience in an alternate occupation acceptable?) was "yes." Subsequently, the response to question J.18 (Does the alien have the experience in the job offered required in H6?) was "no", with Question J.20 (Does the alien have the experience in the alternate occupation in H.10?) as "yes". The system thus concluded that the person was not qualified for the position and automatically issued a denial.

  • "More than one additional recruitment step was conducted less than 30 days from the date of the application." For these types of applications, one type of recruitment was conducted within the 30-day window which is allowed under the regulations, but the system was unable to recognize this scenario and therefore issued a denial.

  • Failure to post a notice for household domestic workers. Denials were issued in spite of the regulation stating that no posting is required for households where there are no other US workers.
The Department of Labor has recognized these programming errors and made every effort to fix them. (However, we very recently received a denial stating that the individual was not qualified for a position requiring a Bachelor's degree plus one year of experience when, in fact, the applicant held a Master's degree and two years of relevant experience.)

A sampling of the types of denials deemed to be Attorney, Agent and Employer error are listed below:
  • Use of a P.O. Box as a company address. A company must use its full address.

  • Attorneys registering on behalf of Employers instead of Employers actually doing these themselves. This implies the DOL can specifically track whether the source of registration was an Agent or Attorney versus that of the Employer.

  • Inclusion of recruitment that took place outside the 180-day/30-day windows. Only recruitment within that time frame should be included.

  • Checking "no" where Employers state they have not offered the job to the foreign national listed as the beneficiary.
Other recent examples of denials include:
  • The system's inability to read characters when a "yes" or "no" has clearly been checked.

  • An Employer's "failure to respond" to the four questions issued by the DOL to verify the integrity of the case, when it is subsequently revealed that such questions had never actually been sent.

  • The accusation that the "wrong" newspaper was used for recruitment because the alien did not live in the area of intended employment, even when the newspaper in question was the largest such publication in circulation in that area. This, again, is a DOL error.

  • The system is clearly not perfect, but then again, each application needs to be prepared with the utmost care.
So in the event of a denial, what do you do? Our suggestion is to search for the underlying reason for the denial. If it is clearly a computer error, we recommend immediate refiling, as requests for review can take months and months. This approach avoids keeping clients on hold, and waiting for reviews of denials based on trivial matters. In the case of a denial, be sure as well that your advertising has not gone stale, which would lead to additional costs and extended waiting periods. We therefore strongly suggest filing immediately after the mandatory 30-day lag time following a client's initial 30- to 60-day recruitment period.

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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