Last month, Attorney Mike Nolan hosted the AILA Conference on PERM Denials which provided a summary of procedural issues and substantive developments -- what to do after denial!
The panel of AILA attorneys noted that denials are sometimes sent to clients by electronic mail, so that the clients receive the denials first. The Panel suggests that DOL should contact the attorney immediately in case of denial, however, if clients receive a notice in the mail -- whether by audit, approval or denial -- they should forward the notice immediately to their attorneys for analysis.
The regulations provide for a Motion for Reconsideration, called "Request for Reconsideration," which must be addressed to the Certifying Officer and delivered to same no later than the 30th day appearing on the notice of denial. This Request may be used to make legal arguments. If a mistake was made by the DOL, the Request should be directed to the Government Error Queue. The DOL reviews these motions quickly. Examples of government errors would be the result of a computer glitch, a mistake made by the DOL when it copied information from Form 9089 filed by mail and, or a misreading of the information on the form.
Alternatively, if the mistake was not a government error, the reconsideration will be addressed in a different queue. While exact processing times are not available, the non-government error queue may take several years to be reviewed.
The important thing about reconsiderations is that the regulations permit the employer to provide supporting documentation after denial only if the employer had the documentation available at the time Form 9089 was filed with the government. 20 CFR 656.24(g)(2). Thus a request for reconsideration is the Employer's only opportunity to supplement the record with documentation regarding the recruitment process, special requirements or any other issue requiring explanation and probative documentation. Of course, prior to denial, the Employer may provide documentation in response to the audit.
If the Request for Reconsideration is denied, the Employer again has 30 days to submit an appeal to BALCA, called a "Request for Review." The Request for Reconsideration to the CO and the Request for Review to BALCA are separate, distinct filings, each requiring a timely submission by the Employer (within 30 days) of a decision by DOL.
Issues appropriate for BALCA review, rather than reconsideration by the CO, include mistakes of law or conflicting decisions by previous Panels of judges. BALCA decisions are normally issued by panels of 3 Judges; however, if a BALCA panel denies the Request for Review, the Employer may request an en banc review from the entire Board within 20 days.
While the PERM Rule does not officially permit new documentation to be provided with Requests for Review to BALCA, there are times when this may occur. The first BALCA case to address this issue was HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). Subsequent decisions have also sometimes permitted remands to consider new documentation.
Recently, in Cumberland Farms, 2011-PER-87, the Employer claimed that it did not receive a notice of denial and therefore missed the opportunity to file an appeal within 30 days. The Employer's appeal to BALCA included assertions and arguments that were mixed fact and law, and which included information that was not available when the PERM application was filed.
The Board cited a pre-PERM case, Madeleine Bloom, 88-BALCA-152, which addresses the issue of manifest injustice as applied to non-waivable statutory or jurisdictional time limits. The Board noted that in Cumberland Farms, the CO did not present proof of internal mailing procedures to invoke the presumption that a notice of denial had actually been sent (Gentis, Inc. v. DSDOL, E.D.Pa., January 11, 2011) and concluded that the presumption of delivery without internal documentation is inherently weak and that the presumption of delivery is always rebuttable, thus allowing new information to be considered on appeal.
Another issue that arises in the battle between Reconsideration vs. Review is that employers sometimes do not use the correct terms in their requests. Traditional terms familiar to the Immigration Bar are "Motion for Reconsideration," "Appeal," or "Motion for Reconsideration or Appeal."
Unfortunately, the terms used in the PERM Regulation are ambiguous: "Request for Reconsideration" and "Request for Review." Given the lack of clarity in the terms and the fact that both types of review must be addressed to the CO, who then forwards only the appeals (Requests for Review) to BALCA, the Board found that the CO should have looked beyond the name of the request or motion to determine whether it was intended to be reconsideration or appeal.
Another case on point is CVS RX Services, Inc., 2010-PER-1108, November 16, 2010, which granted a remand to the Employer. The Employer included important documentation submitted for the first time in its request for review, even though the documentation was not previously available at the time the PERM application was filed. On review, the Board quoted from Denzil Gunnels, 2010-PER-2010 as instructive, where the CO refused to accept important documents and arguments as part of a motion for reconsideration simply because the motion was erroneously entitled "Request for Review of Form ETA 9089 Denial," and not "Request for Reconsideration."
While reconsideration and appeal are sometimes necessary to maintain an alien's AC-21 work authorization, correct a government error, or preserve an important issue, the DOL and Immigration Attorneys generally agree that the best remedy after denial is to file a new PERM application with the objectionable issue corrected. DOL welcomes refiling rather than reconsideration and review. The main problem with refilling, however, is the fact that this will normally occur after the 180 day recruitment period, so that a whole new recruitment program is required including all the costs for advertisements.
Note: Under AC-21, an H-1B visa may be extended at any time during the labor certification process until a final administrative decision is reached, including periods of reconsideration and review by BALCA, provided that the PERM application was filed prior to the beginning of the alien's sixth year in H-1B status in the U.S. However, time spent out of the US may be subtracted from the total six years, and aliens may also change status or re-enter the US after the sixth year began, thereby "resuming" prior H-1B status even after the sixth year has begun.