If your PERM labor certification application is denied, you may not know what to do next. Although PERM application denials aren’t uncommon, they can come as an unpleasant surprise, dramatically impacting the immigration process and your immigration options. And if you wish to still come to the United States with an employment-based green card or visa, you will need to know what steps you can take after receiving a PERM denial notice. Keep reading to find out why labor certification applications are denied and what you can do next.
Why PERM Applications Get Denied
To ensure everything is in line with the USCIS requirements for employers and foreign workers, the PERM application requires quite a lot of information. So, it isn’t exactly uncommon for employers to have their PERM labor certification application denied.
Here are some examples of why the USCIS may deny a PERM application:
- Inconsistencies and technical mistakes: The most common reason for a denial is due to simple technical issues, such as missing information. Or, your application may be denied due to inconsistencies in information, such as providing both outdated and up-to-date information.
- Recruitment errors: Your sponsoring employer may have missed the advertisement posting timelines, not properly interviewed U.S. applicants, or failed to conduct all of the required recruitment steps.
- Restrictive job requirements: PERM applications may face a denial from the USCIS if it’s suspected that the employer specifically created restricted job requirements for the purpose of tailoring the role for the foreign worker.
- Documentation issues: Employers must provide extensive documentation showing that they have followed the requirements for PERM certification. Failure to do this will usually result in a denial.
Keep in mind that these are just a few common examples of why the USCIS may deny your PERM application. When you receive the notice of denial, you will be provided with additional information that applies to your specific application.
What to Do After Your PERM Application is Denied
Learning that your PERM labor certification was denied can feel like a significant roadblock in the immigration process. However, the good news is that you still have options that allow you to move forward with the immigration process.
Review the Denial Notice
Before taking any action, the very first thing you need to do is review the denial notice to understand the reason for the denial. The certifying officer will have provided the specific reason for this, which will ultimately determine what your next steps should be.
It’s also strongly recommended that you hire an immigration attorney before starting this process. An attorney can work with both employers and foreign workers when it comes to navigating PERM denial and the best appeal options.
Request Reconsideration
The next step that you will usually need to take to address a PERM certification denial is to request reconsideration. Your sponsoring employer will need to file a request for reconsideration with the certifying officer who issued the denial, requesting that they review their decision and potentially reverse it.
Keep in mind that the U.S. employer must initiate this step within 30 days of receiving the denial letter. Requesting reconsideration also isn’t a good option if you need to provide additional information, as you are not allowed to submit new evidence that could alter the original PERM filing.
Request a BALCA Review
Even if a request for reconsideration isn’t successful and the certifying officer still denies your application, your employer can also submit a request for a review with BALCA. This is a step they can take directly after receiving a PERM denial or after they have tried requesting reconsideration from the certifying officer.
A request for BALCA review formally requests that the Board of Alien Labor Certification Appeals review the certifying officer’s decision. Your employer must initiate this process within 30 days of receiving the original denial letter, and they cannot provide any new evidence.
Also, your employer cannot file both a request for reconsideration and a request for review with BALCA at the same time.
When Refiling PERM May Be the Better Option
In some cases, it may be best to simply refile the PERM labor certification application instead of trying to address the reason for the original denial. This is usually the case if the denial was due to errors with the application that your employer needs to address.
So, you and your sponsoring employer should consider refiling if you believe you need to provide additional evidence for approval. Neither appeal option leaves much room for introducing new evidence, making refiling the most straightforward and realistic option in these types of cases.
Tips For Successful PERM Applications
To avoid running into issues with PERM approval, there are certain things that employers should keep in mind. After all, filing a strong application from the start is much easier and faster than trying to address a denial later on.
So, here are some realistic tips employers can use when applying for PERM certification:
- Carefully follow the deadline requirements.
- Understand the recruitment and job requirements set by the USCIS.
- Thoroughly document every step of the PERM process.
- Double-check all information to ensure it’s up-to-date and consistent.
- File the prevailing wage determination early on in the process.
It’s also a good idea to work with an immigration attorney throughout this process, as they will have much more experience with PERM certification.
Hire an Immigration Attorney Today
Are you wondering what happens if PERM is denied and what the best immigration option is moving forward? Contact us today at U.S. Immigration Law Counsel at 800-666-4996 to speak with one of our immigration attorneys about your situation. We will deal with the government, so you don’t have to!
FAQ Section
Can a denied PERM application be appealed?
Yes. Depending on the reason for the denial, your employer could request reconsideration or a BALCA review.
Can the employee appeal the PERM denial alone?
No, PERM applications can only be filed and appealed by the sponsoring employer.
Can an employer simply file another PERM application?
One of the options employers have is to simply refile with a new PERM application. However, if you choose this option, you must address the reason for the original denial.
