PERM Denied

jkrm77

Registered Users (C)
I filed my labor via the normal approach in march 2005 and later converted that to perm in mar 2006 .

I have a bs in CS + 8 yrs experience . The job requirement posted was for ms+2 / bs+5 yrs of experience.


This week i got the denial for this case .

My Perm application was rejected due to the following reasons.

Form ETA 9089 has not been certified. A certification cannot be issued as required by section 212(a)(5)(A) of INA as amended.

Reason for Denial :
ETA Form 9089 indicated the alien is currently employed by the employer and only qualifies for the position identified in the application by virtue of employer's alternative experience requirements.
However the employer has not indicated on the application that applicants with any suitable combination of education, training or experience are acceptable.

Authority of Denial :
Per 20 CFR 656.17(h)(4)(ii) "If the alien beneficiary already is employed by the employer and the alien does not meet the primary job requiremenets and only potentially qualifies for the job by virtue of the employer's alternative requiremenets, certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable. Therefore the application is denied.

I am already in my 7 th year extension . I talked to my lawyer and he said that he will appeal and will also apply my 8 th year extension based on the appeal . Also he will be applying a new perm application with a different job title .

My question is

1) what happens if the appeal is denied . Will my 8 th year extension be invalid? if appeal is denied can i use the new perm approval to get the h1 extension.

2) How long does the appeal take? My lawyer said 1 - 1.5 years ?? is that true

3) Does appeal in this case a good thing to do ? or should i withdraw and file a new one.

4) I read in some posting that you can call the CO and talk to him directly about the denial . Is that possible?

5) Assuming that the appeal is heard , will the priority date change?

6) did you ever hear of any successful appeal in such a case?

Any advice on this case is highly appreciated.
Confused

Thanks
Jay
 
The appeals process is extremely slow because BALCA (the appeals board) has sent a lot of cases BACK to the service centers for re-review due to denials that were, pardon the term, "bogus." The re-filing with a new job title is probably a better bet. If you can get the PERM approved quickly and file the I-140 premium processing, you will be able to extend for 3 years based on the approved I-140.
 
st4rguitar said:
The appeals process is extremely slow because BALCA (the appeals board) has sent a lot of cases BACK to the service centers for re-review due to denials that were, pardon the term, "bogus." The re-filing with a new job title is probably a better bet. If you can get the PERM approved quickly and file the I-140 premium processing, you will be able to extend for 3 years based on the approved I-140.
thanks st4rguitar for the reply. So you are suggesting to file a new one and parallely go for the appeal ?

Have you heard any approvals in these appeals ??
 
ImmigraBoy said:
I don't think you can re-file and appeal at the same time. What st4guitar means is just re-file.
my lawyer says that we can but the job title has to be different.
 
Can you please clarify the denial a little bit ( I am new in the forum)? Does this means that DOL denies when you only qualify for the alternative requirement? E.g. if the qualifications say : BS + 5 years or MS + 3 years, and you have MS with 3 years, you won't qualify for the position?!
 
unsure said:
Can you please clarify the denial a little bit ( I am new in the forum)? Does this means that DOL denies when you only qualify for the alternative requirement? E.g. if the qualifications say : BS + 5 years or MS + 3 years, and you have MS with 3 years, you won't qualify for the position?!
If you qualify becuase of the alternate requirement then you need to specifically put that in bold text in the perm application . My lawyer didnt do that so it was rejected.
 
Thanks!! That is a little bit of consolation. As my lawyer refuses to talk to me at all, because the company is the client, my only option is to pray he knows what he is doing ....
 
unsure said:
Can you please clarify the denial a little bit ( I am new in the forum)? Does this means that DOL denies when you only qualify for the alternative requirement? E.g. if the qualifications say : BS + 5 years or MS + 3 years, and you have MS with 3 years, you won't qualify for the position?!

Can you please let us know what you answered for H & J sections?

Thanks.
 
RE: JKRM -- We re-filed a new case and it was approved in only 3 days in a similar situation. In the meantime, we are appealing the earlier denial (denied b/c there was not a province or postal code listed... what BS.... don't you think everyone in the universe knows where Cairo is ?? Anyway, the appeal is pending. If it does get approved for whatever reason (harmless error appeal), then hopefully we will be able to salvage the earlier priority date. As for now, we're just not sure based on the current appeals. I have heard of a few appeals being approved for harmless errors (i.e. one on AILA indicated that the attorney put a monday date instead of a sunday date for the newspaper ad information, and BALCA indicated it was a harmless error). Unforunately, PERM keeps trying to "change things as they go..." so I guess we'll all just have to wait and see what "magic" (aka crap) they come up with next.
 
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