Denial Of Labor Certification filed under EB2

R

rajsh1

New Member
Dear Sir/Madam,

My PERM was filed under EB2 category (Bachelors + 5yrs experience). The case got audited by DOL. In response, my attorney mailed all the relevant papers including the electronically filed copy of ETA 9089 with original signatures. However, DOL denied the certification on the grounds that "employer failed to provide a copy of ETA 9089 with original signatures in PDF format". I tried to compare the electronically filed copy of ETA 9089 and the PDF format and found that there is difference between the two in the sense that there are no specified columns for Signature and Date in Electronic copy for but specified in PDF format. On the electronic copy, we only put signatures without date.
My questions are:
1. Was it okay on the part of attorney to mail the Electronic copy of ETA 9089, which had only original signatures in Section L, M and N but no dates?
2. Or did the attorney made grave mistake in not sending the PDF format of ETA 9089 as audit response?

3. My attorney is saying that DOL has a mindset of denying cases of EB2 for any or all reason. They sent the electronic copy in past and never got challenged. He is correct in his conjecture or trying to cover up his mistake?

4. Would it be wise and best decision to re-file the case in EB3? My H1B is expiring in Oct 2009.

I would appreciate you response on this so that I could take wise decision for further action.
Thanks,
RajS
 
rajsh1 said:
Dear Sir/Madam,

My PERM was filed under EB2 category (Bachelors + 5yrs experience). The case got audited by DOL. In response, my attorney mailed all the relevant papers including the electronically filed copy of ETA 9089 with original signatures. However, DOL denied the certification on the grounds that "employer failed to provide a copy of ETA 9089 with original signatures in PDF format". I tried to compare the electronically filed copy of ETA 9089 and the PDF format and found that there is difference between the two in the sense that there are no specified columns for Signature and Date in Electronic copy for but specified in PDF format. On the electronic copy, we only put signatures without date.
My questions are:
1. Was it okay on the part of attorney to mail the Electronic copy of ETA 9089, which had only original signatures in Section L, M and N but no dates?
2. Or did the attorney made grave mistake in not sending the PDF format of ETA 9089 as audit response?

3. My attorney is saying that DOL has a mindset of denying cases of EB2 for any or all reason. They sent the electronic copy in past and never got challenged. He is correct in his conjecture or trying to cover up his mistake?

4. Would it be wise and best decision to re-file the case in EB3? My H1B is expiring in Oct 2009.

I would appreciate you response on this so that I could take wise decision for further action.
Thanks,
RajS
Click to expand...
refile under eb-2...I strongly believe your attorney made a blunder and he is now trying to cover it up.
 
rajsh1 said:
Dear Sir/Madam,

My PERM was filed under EB2 category (Bachelors + 5yrs experience). The case got audited by DOL. In response, my attorney mailed all the relevant papers including the electronically filed copy of ETA 9089 with original signatures. However, DOL denied the certification on the grounds that "employer failed to provide a copy of ETA 9089 with original signatures in PDF format".
RajS
Click to expand...

I'm a little confused... where in ETA 9089 you specify this is EB2 filing. I thought it is done at I-140 stage. So, do you mean that your PERM is denied, i.e. it has nothing to do with EB2 or EB3?
And I agree with lonesome that just re-file Perm.
 
Re: Denied Audited EB2 Case...

Hi Rajsh1,

That's really weird. I've never heard of them requesting a PDF format for your signed ETA; we have always responded to audits via mail only. Although unfortunately, I've seen the DOL deny cases for less than that:

Ex., DOL audited case, we replied with all necessary documents, DOL said Prevailing Wage Request copy was not in there - we looked at copy of all docs sent and it WAS THERE PLAIN AS DAY!! We simply re-filed, as it would turn into a he-said-she-said situation and arguing with the officer would be pointless.
Ex. DOL audited case, we replied with all necessary documents within 1 week of audit via Fedex & saved tracking information to confirm was received the next day. We received a denial saying they never received our audit response. We provided them with the tracking number to show that yes, it was received, and we sent them another copy of the package. The case is now reading "In Process" again on the status system.
Ex. Additionally, I read on the AILA message boards about a case being denied for a foreign language requirement, stating that the requirement was not needed. Guess what the position was? A Spanish teacher in the US. See what I mean by ridiculous?

My assumption is that the petition was printed the wrong way, judging by what you have said. When you (you meaning whoever logs in - attorney/employer) log in to the PERM system, you can print a form in 2 formats - in the format where each page is populated onto a PDF, OR, in the format where it's just all there clumped together (hard to explain - but there is no place for signatures on that format.) Maybe it was printed out wrong, or maybe the officer was having a bad day and denied it.

Again, your attorney is right in that the DOL is looking for any reason to deny EB2 cases. They are getting pickier and pickier and pretty much every EB2 case we file now is audited. I'd hate to think that an attorney would just flat out lie to you, and my heart would hope that's not the case. Although, not all attorneys are as awesome as my boss is, so I can only give the benefit of the doubt!!

Are the ads/recruitment still current? Can you re-file immediately? If so, that's what I would do in your situation.

Good luck,
St4r

rajsh1 said:
Dear Sir/Madam,

My PERM was filed under EB2 category (Bachelors + 5yrs experience). The case got audited by DOL. In response, my attorney mailed all the relevant papers including the electronically filed copy of ETA 9089 with original signatures. However, DOL denied the certification on the grounds that "employer failed to provide a copy of ETA 9089 with original signatures in PDF format". I tried to compare the electronically filed copy of ETA 9089 and the PDF format and found that there is difference between the two in the sense that there are no specified columns for Signature and Date in Electronic copy for but specified in PDF format. On the electronic copy, we only put signatures without date.
My questions are:
1. Was it okay on the part of attorney to mail the Electronic copy of ETA 9089, which had only original signatures in Section L, M and N but no dates?
2. Or did the attorney made grave mistake in not sending the PDF format of ETA 9089 as audit response?

3. My attorney is saying that DOL has a mindset of denying cases of EB2 for any or all reason. They sent the electronic copy in past and never got challenged. He is correct in his conjecture or trying to cover up his mistake?

4. Would it be wise and best decision to re-file the case in EB3? My H1B is expiring in Oct 2009.

I would appreciate you response on this so that I could take wise decision for further action.
Thanks,
RajS
Click to expand...
 
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