If you’re a U.S. employer hoping to sponsor a foreign worker for a green card, then you’ll likely need to apply for a Permanent Labor Certification, also known as PERM. An approved PERM application certifies there are no available, willing, and qualified U.S. workers for a specific job, allowing an employer to hire someone from outside the country.
However, sometimes a PERM application is denied. Although a PERM denial can be disheartening and frustrating, you have options. Read on to learn what to do in the event your PERM request is denied.
1. Understand the Reasons for Denial
The first step after receiving a denial notice is to carefully review the reasons provided for the denial. The Department of Labor (DOL) typically issues a Notice of Denial that outlines the specific grounds for denial. Common reasons for PERM denials may include incomplete or inaccurate documentation, failure to meet recruitment requirements, and issues with the job advertisement process.
Understanding the specific reasons for denial is crucial as it will guide your next steps and help you address any missing information in your application.
2. Request Reconsideration
If you believe that the denial is unjust or that there was an error in the decision, you have the option to request reconsideration. You must file a request for reconsideration with the DOL within 30 days of receiving the denial notice. In your request, you should provide a detailed explanation of why you believe the denial was incorrect, along with any supporting documentation.
3. File an Appeal with the Board of Alien Labor Certification Appeals (BALCA)
If your request for reconsideration is also denied or if you receive no response within 30 days, you can escalate the matter by filing an appeal with the Board of Alien Labor Certification Appeals (BALCA). The BALCA is an independent body that reviews PERM denials and can overturn the DOL’s decision if they find merit in your case.
When filing an appeal with the BALCA, it’s crucial to adhere to their specific guidelines and deadlines, as failure to do so may result in a dismissal of your appeal.
4. Explore Other Immigration Options
While waiting for the outcome of your reconsideration or appeal, it’s wise to explore alternative immigration options. Depending on the foreign worker’s specific circumstances, they may be eligible for other employment-based visa categories that don’t require a PERM certification, such as H-1B, L-1, or O-1 visas.
Additionally, you can consider reapplying for PERM with a modified application that addresses the issues that led to the initial denial.
5. Seek Legal Counsel
Navigating the PERM process, especially in the event of a denial, can be complex and challenging. It’s a good idea to consult with an experienced immigration attorney who can provide guidance, assess your case, and help you develop a strategic plan to address the denial.
The Bottom Line
Receiving a denial for your PERM application can be discouraging, but it’s important to remember that it’s not the end of the road. Understanding the reasons for the denial, pursuing reconsideration and appeals if necessary, exploring alternative immigration options, and seeking legal counsel are all viable paths to overcome a PERM denial. With persistence and the right guidance, you can still hire the best person for the job, wherever they are in the world.
For more info, check out the Boundless article on tips to master the PERM audit process.