Help: Perm denied on alternate requirments

T

testusr99

New Member
Hi,

My perm application has been denied. Here is what I got from the dept:

ETA form 9089 indicates the alien is currently employed by the petetioning employer and only qualifies for the position identified in the application by virtue of the employer's alternative requirements. Specifically, the application indicates in Section H.7-A that an alternate field of study in Engineering is acceptable. However, the employer has not indicated on the application that applicants with any suitable combination of education, training, or experience are acceptable.

If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.


I am already in my 6th year of H1, can you please suggest what's the best course of action?

Thanks
 
testusr99
It is written in bold letters in PERM register, that if an employer is trying to fulfil labor certification requirements secondarily and if employee is currently working for him, then eta 9089 has to mention will accept any suitable combination of education, training, or experience. BTW was this eta 9089 filled in by an attorney. If the recruitment dates are not expired may be you could refile
 
It was filed by an attorney and unfortunately my ads were run more than 180 days ago. Cannot use those ads anymore and also I finished 5 years on my H1 last month. Any advice on the best course of action would be greatly appreciated.
Thanks
 
Start new PERM, plan carefully, hopefully before end of 6th year you would get perm approved for those who have 60 days or less in h1b left can go for I-140 premium processing (result within 15 business days) according to recently issued guidelines and based on approved I-140 can get additional 3 years h1b extension according to AC21
 
Thank you for the reply.

My attorney keeps telling me that if I start with a new PERM application, I cannot extend my H1 even if I get I-140 approved since 9089 is filed after 5 years? Is that true?

Since you mentioned that I-140 is only for people who have 60 days left on H1, what if I have more than 60 days left?

I have 11 months left on my H1. Please suggest!
 
Try to understand this, to get a 7th year h1b extension either labor ceritification or Employed based petition (I-140) should have been filed before start of 6th year, in this case you get 1 year extension OR if your I-140 is approved then you get straight 3 year h1b extension (AC21), in this case it doesnt really when labor certification was initiated before or after start of 6th year. Due to recent changes for I-140 premium processing, people whose h1b is expiring within 60 days, can request premium I-140 processing
It this is unclear, send me private message, i can email you AC21 guidelines for 7th year extension
 
whitemimauz3,

I am unsure if this rule i.e. "to get a 7th year h1b extension either labor ceritification or Employed based petition (I-140) should have been filed before start of 6th year" applies in this case, because a lc application was made but got denied.
I think refiling is possible with new current ads.

Not sure though, you should check with your attorney.
 
testusr99 said:
Hi,

My perm application has been denied. Here is what I got from the dept:

ETA form 9089 indicates the alien is currently employed by the petetioning employer and only qualifies for the position identified in the application by virtue of the employer's alternative requirements. Specifically, the application indicates in Section H.7-A that an alternate field of study in Engineering is acceptable. However, the employer has not indicated on the application that applicants with any suitable combination of education, training, or experience are acceptable.

If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.


I am already in my 6th year of H1, can you please suggest what's the best course of action?

Thanks
Click to expand...

They have the right to deny it on this reason unfortunately. If you don't qualify using the main requirements and only qualify using the alternate requirements, the Kellogg language of "Will accept any suitable combination of training, education, or experience" must be indicated on the petition.
 
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