Grounds for PERM Appeals
An employer looking to hire a foreign worker with permanent residence and working papers (green card) has to apply for the PERM labor certification on behalf of the foreigner. Upon making this application, the DOL has three options when responding to it.
The application could be accepted, denied or audited. Where it is audited, usually a request for further information or explanation, the applicant employer must answer the audit notice or PERM would not be granted. Where the application is denied, applicant is allowed to appeal against the denial. Due to the time and resources consuming nature of the PERM process, employers should take extra care to ensure all provisions of the PERM Rule are being adhered to, most especially that relating to the job vacancy advertising.
The Board of Alien Labor Certification Appeals (BALCA) bears the duty of hearing requests for reconsideration or reviews, in other words appeals, of PERM applications that have been denied. Before the BALCA, employer may first make a request for reconsideration to the Certifying Officer before appealing to BALCA where the Certifying Officer denies the reconsideration.
Request for reconsideration or appeal against denial must be done within 30 days. The employer appealing must state in sufficient details and carefully the grounds for appealing. Failure to do so could mean a dismissal of the appeal by BALCA. A 1988 decision of the Board in Matter of North American Printing, 88-INA-42 lends support to this principle. Depending on who is making the application, the grounds could be set forth in a statement of position or a brief. Employers applying themselves are likely to produce a statement of position stating their grounds and making their arguments in layman terms, while a lawyer representing the employer might produce a brief.
A brief look at these grounds. The grounds must be sufficiently detailed, this means vague statements like the law is too rigid, unfair or unreasonable would not be considered. Also, the grounds and arguments must be different those already deliberated on by both parties previously. This also include documents. Fresh documents cannot be simply brought up during the appeal that were not there when the application was being considered. The only way a fresh document can surface during appeal is if there was no opportunity to have presented the document before the application was denied.
One ground could be that the denial was a violation of the provisions of the PERM Rule, providing details of the specific section in question will provide the Board with the employer’s particular grounds for appeal. Where the application was audited, and the employer failed to address all the issues raised, if the application gets denied due to this, the employer cannot then raise new issues from this.
The essential ingredient of all that’s being said is that an appeal considers only the issues that led to a denial and bars the employer from raising new ones.