Erroneous PERM Denials

[jwhsfo]

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http://www.ilw.com/articles/2005,1103-dalton.shtm

PERM Erroneous Rejections – "What A Travesty "

by Vivien Dalton

In these uncertain times in the world of "PERM" we would like to share our experiences with other PERM practitioners on a national basis, who may be going through the same experiences as our group of attorney's located here in Las Vegas and Southern California. We refer to applications that were mailed in or, electronically filed. We refer to applications that were "perfectly developed" but were denied based specifically upon, "selections were not made at..." (See denial reasons stated below). We refer to "Erroneous Rejections" Where DOL have denied the application based upon the following:

Denial Reason(s)
A selection was not made for Section A-1, Previously submitted application and the application is incomplete. Therefore, per 656.17(a), this application is denied

Their list goes on…. DOL listed nine (9) selections that they stated were incomplete. We immediately pulled the file to check. How could we have missed nine (9) selections. We have been preparing and filing Labor Certifications 1979. Personally, I pride myself on being very detail oriented. How could this have happened? We analyzed the ETA 9089 Form and found that all nine (9) selections had been completed and appropriately entered!

We immediately began to prepare the "Request for Review". It's pretty simple to do because DOL have the original copy of the Form 9089 FORM. All they have to do is pull the form and have the Certifying Officer, (not the input clerk) take a second look. Obviously the computer cannot read boxes on the 9089 form. The computer reads these spaces as blanks even though selections were properly completed. For sure a computer glitch at DOL's end.

Now! Try explaining why the application was denied to your client's. They cannot believe the system is so flawed. We made a call to DOL to ask approximately how long it takes for them to respond to a "Request for Review". We were told, "We cannot tell

 

[jwhsfo]

Erroneous PERM denial

COMPLETION OF ARTICLE ABOVE:

Now! Try explaining why the application was denied to your client's. They cannot believe the system is so flawed. We made a call to DOL to ask approximately how long it takes for them to respond to a "Request for Review". We were told, "We cannot tell you. The system is too new to provide you with that information!" Another detail employer and foreign worker don't want to hear! One thing for sure is that whilst the "Request for Review" is in process, it prevents us all from re-filing another PERM application. Naturally, the employer(s) and the foreign worker(s) are not happy campers!

In total, we have experienced a total of nine (9) "Erroneous Rejections" all based upon "A selection was not made at…" when in fact we have documented proof that all identified selections were completed.

Finally, the latest denial of last week really shook us all up! It read:

Denial Reason:
Per 656.10, a labor certification on behalf of an alien must be filed by an employer. The employer's representative contacted by the ETA and/or the National Processing Center did not authorize this application, therefore the application is denied.

Of course, this is totally incorrect! The employer certainly did authorize the application. Within two days of receiving this "Erroneous Rejection" The employer immediately expressed a "Request for Review" to DOL stating the appropriate rebuttal information.

We have a strong feeling that there are great numbers of PERM practitioners out there who are also totally disappointed and exasperated with these, Erroneous Rejections".

Conclusion:

We would like to compile a number of cases that fit in this category as stated above. We want to approach the Certifying Officer(s) with enough data to alert them of this additional flaw in their system that apparently has not been addressed to-date.

PERM practitioners interested in completing a PERM questionaire are invited to send an email to:vivdalton@aol.com. With your cooperation, we hope to bring this unacceptable situation to the "Powers that Be". Thanks for your participation.
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About The Author
Vivian Dalton is a U.S. citizen, originally from Manchester, England. She began her career working as an Immigration paralegal in 1979 in Los Angeles, CA. As the years went by, she found that preparing and filing Labor Certifications and H-1B visas although challenging, were very rewarding. Thus, over the years she has specialized in the two areas that she enjoys the most. Two years ago she relocated to Las Vegas, NV, and she is currently working for a very select group of attorneys located in Southern California as well as Las Vegas.

 

[jwhsfo]

Our erroneous PERM denial

The Chicago Office of the Employment and Training Administration (ETA) has been issuing erroneous denials on aplications for labor certification (first hurdle on the way to getting a green card by employment sponsorship). Ours was denied erroneously because the certifying office said that "the Employer's representative contacted by the ETA … did not authorize this application." This was totally false. The employer never got the required email (after the application was filed) but he did get a phone call from the ETA and he told the person who called him, unequivocally, that he had submitted the application for labor certification under the PERM rules, that he affirmed this application, that he authorized this application and that he would be happy to help the person who called with any other information she might need to help the process move along quickly. The person who called, incorrectly entered the results of her conversation with the employer and the certifying officer DENIED the application. It is now under appeal but that is expensive because the employee works for a small firm and has to pay all the legal fees. Congressman's aides and others are trying to intervene but they have not been successful so far. If any others are having a similar problem, please contact me (jwhsfo@pacbell.net). I've heard of 14 other similar cases to our case.