Post PERM Denial Notice By Department Of Labor: Appeal Or Reconsideration?
Unfortunately, even a very thoroughly prepared PERM application may result in a denial. The concerns about whether it is worth it to appeal it, boils down to the eligibility of the appeal. At this point, the legal fees will be heavier, the application will take more time to appeal then it did to submit and wait for the denial; it is always best to consult with an attorney regarding your options as there are many reasons for a denial. The first thing you will have to worry about which can be solved quickly if you act is your statute of limitations, the clock starts ticking as soon as you receive your denial.
Employers have two potential actions to execute within 30 days of receiving the notice of denial. They can request a reconsideration of the PERM Application or request review by BALCA (Board of Alien Labor Certification Appeals). If your employer chooses to do neither, the decision to deny your application will become final when the thirty (30) days are up. Unfortunately for the employee, an employer is the only person with the ability to challenge denial: it can and should submit additional evidence that may sway the former decision of the CO (Certifying Officer) to deny the employers request. The costs of such an appeal must be paid by the employer as it is part of the PERM process and the employer must pay the expense for the whole process.
When making your choice between reconsideration from the CO or a review from BALCA, if there is any "additional" evidence to submit, although the evidence allowed to be submitted will be limited, your right to submit this additional evidence is waived when you request review from BALCA. Therefore, it may be a better choice to ask for reconsideration in this matter, however, if there is no additional evidence to be submitted, BALCA , in 90% of the time, will be your best choice.
If the first option of reconsideration is your choice there are a few things to be aware of:
- Your employer may not submit any documents (unless requested by DOL) that were created after the filing date of your PERM Application.
- A motion must be made for reconsideration, this must be submitted in writing to the CO.
We will elaborate on BALCA appeals in our future publications.