A permanent labor certification (PERM) issued by the U.S. Department of Labor (DOL) authorizes an employer to hire a foreign worker for permanent employment in the United States. In most situations, before the employer can submit an immigration petition to United States Citizenship and Immigration Services (USCIS), the DOL must certify that there are not enough qualified United States workers available and willing to fill the job opportunity and that the employment of the foreign worker will not negatively impact the wages and working conditions of similarly situated employed U.S. workers.
Applying for PERM certification to the DOL under Form 9089 can be a very lengthy process. If the labor certification application becomes subject to an audit, the applicant could wait well over a year for a determination from the government. Miranda & Weisman understands that employers and employees have a great deal riding on the government’s decision.
We also know that the audit process can be complicated and stressful. If your application is under audit, a Maryland employment immigration lawyer can help. Our firm is familiar with how these audits work and we can assist your business or organization throughout all stages of the process. In the event that your application is denied, we will carefully review your case and advise you on all of the legal options available to challenge the government’s decision.
The DOL can deny an application for PERM labor certification for a number of reasons. When a PERM labor certification application is denied, the employer has the option of either filing a motion to reconsider with the certifying officer (CO), or requesting review by the Board of Alien Labor Certification Appeals (BALCA). The employer must make the decision and act within 30 days of the issuance of a PERM denial notice. If the employer fails to do so, the DOL’s decision will become final.
When a motion to reconsider is filed, the CO can only review the decision based on existing evidence that was either part of the CO’s original determination, or which the employer did not have the opportunity to submit previously. Upon receipt of a motion to reconsider, the CO has the option to either grant the motion and reopen the application or deny the motion, in which case the motion would then serve as an appeal to BALCA.
Upon receipt of an appeal, BALCA reviews the decision of the CO. While both the employer and the DOL are permitted to provide written statements to support their argument, they are not allowed to submit any new evidence. BALCA can affirm the decision of the CO, send the case back for additional review, order a full hearing before BALCA, or overrule the decision and grant the approval of the PERM labor certification application.
Because the appeal process can be quite lengthy and complex, employers need to carefully weigh their options in order to determine whether filing a BALCA appeal will be likely to serve their interests.
Due to the many complex and competing factors to consider, businesses would be wise to consult with a knowledgeable Maryland employment immigration lawyer before taking any actions on a PERM denial. At Miranda & Weisman, we have the knowledge and experience necessary to fully evaluate your situation. We will take the time to thoroughly review your case and analyze all viable alternatives so that you can select the best course of action to achieve your employment goals.
Call today to schedule your free consultation: 410-321-4994.