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PERM - Labor Certification Sample Cases

These are some sample cases from our files. It is impossible for us to present all have done past over 15 years of our practice. But these were some cases that came to mind when we started writing this column 2-3 years ago.

Case type: PERM Approval after two denials

Submitted by Rajiv S. Khanna on Apr 18th 2012
Category: PERM - Labor Certification, DOL, Physicists
Status: PERM Approved

It is HIGHLY unusual for a PERM case to have such a convoluted history, but here is one where success came after two denials.

We filed a PERM application under EB-2 for a Physicist’s position for which no formal training was required. The job also did not require employment experience, but did require hands-on work in a university research laboratory with a particular equipment.  DOL denied the application stating essentially that the job requires training.  According to them, “hands on work” is the same as formal training.

We responded with an MTR/Appeal asserting that this was not an appropriate ground for denial and that no formal training was required or available in these technologies. We submitted that hands-on work in a university research laboratory does not constitute formal training. Upon consideration, DOL agreed with us and reopened the application.

A year and a half later, DOL issued an Audit Notification. Immediately following our response, DOL denied the application for the second time, stating (incorrectly) that the advertisements were defective due to some technical reasons. Our response, in the form of another MTR/Appeal, included a clear exposition of the law. Given that the denial reason was clearly an error on DOL’s part, we requested the case be placed into an expedited review so the case would quickly be reopened and approved. To our relief and joy, within one week DOL certified the labor application.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Case type: PERM approval for a foreign company with minimal presence in USA

Submitted by admin on Jun 6th 2011
Category: PERM - Labor Certification

The head-quarters for the sponsoring employer were located outside the United States.  The applicant worked in the United States at a branch office, which had fewer than 5 employees.  Because of the head-quarters location and the US branch office size, the DOL questioned the existence of the company in the United States.  We responded with evidence of the sponsoring employer’s business in the United States and the PERM Petition was certified.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Case type: PERM Approval for brother of corporate president

Submitted by admin on May 25th 2011
Category: PERM - Labor Certification
Status: I-485 Approved

The sponsoring employer was a small company (less than 20 employees) that was sponsoring the brother of the president.  The Labor Certification was audited due to the familial relationship, which is a significant issue in the PERM process. We successfully responded by proving that the relationship between the president and the applicant did not influence or affect the PERM Processing.  The I-140 petition and I-485 petitions were approved, and the applicant received his permanent residency. 

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Case type: BALCA Appeal Leads to Voluntary PERM Certification by CO

Submitted by Rajiv S. Khanna on Dec 7th 2010
Category: PERM - Labor Certification, BALCA, CO
Status: Labor Certification Approved

In a case decided yesterday, we had filed an appeal to BALCA against a PERM denial by the Certifying Officer (“CO”).  The ground for denial was that the Job Order did not provide the exact salary offered to the foreign worker.  We showed in our appeal that the fault lay with the Job Order form of the State Workforce Agency.  The form did not permit us to enter the higher end of the wage range for our job, where we had offered a wage range instead of an exact figure.  The CO appears to have agreed with us and has withdrawn denial and certified our case. 

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Case type: EB2 approval after EB3 on the same labor certification

Submitted by Rajiv S. Khanna on Sep 8th 2010
Category: Form I-140, PERM - Labor Certification
Status: EB2 Approved

We had a Labor certification case filed for an IT professional. The requirements were Bachelor's degree and 5 years of experience. We filed I-140 under EB-2 category.  After approximately 8 months, USCIS sent us an RFE saying Bachelor's plus five years would not qualify under EB2 unless the experience required is progressive in nature.  We knew that USCIS was wrong under the circumstances of the case, but an argument with the government was unnecessary because the EB-3 priority dates were then current.  In the RFE, the employer was also given an option of changing the classification to EB3. After discussion it was decided that employer will accept EB-3 classification since the priority dates for EB-3 category were current.  Then the EB3 and EB2 priority dates slipped back.

Recently when the EB-2 PD became current for our client, we applied again for an EB-2 I-140 using the same labor certification.
The I-140 approval was received along with the I-485 approval notice.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Case type: Labor Cert reopened and approved after case closed for over one year

Submitted by Chief Editor on May 12th 2009
Category: PERM - Labor Certification

We have recently been able to successfully reopen a labor certification and get the case approved after it had been closed because of what we feel were errors by two previous lawyers retained by employer. Our client had her case denied and closed over ONE YEAR ago. We were retained for a consultation and in-depth review. It appeared obvious that the employer and the employee were not at fault. It took some effort but the facts were compelling enough that USDOL reopened the case in the interest of justice. The case was approved last week. We truly appreciate the fairness shown by USDOL.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Case type: PERM Denial Based on Typographical Error by DOL Rectified

Submitted by Chief Editor on Mar 26th 2009
Category: PERM - Labor Certification

We filed an ETA 9089 (PERM) Petition by mail in July 2008, as the advertisements were expiring and DOL had a delay in registering the company's PERM account. A denial was issued on the grounds that the advertisements and prevailing wage were expired when the case was received for processing. Further inspection noted a typographical error by DOL in the year the case was received. Our office was able to correct this matter without going through the normal process of filing a Motion to Reconsider, therefore saving the client hundreds of dollars in legal fees and a year or more processing time for MTR's with the DOL. 

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Case type: Labor Certification

Submitted by Chief Editor on Mar 26th 2009
Category: PERM - Labor Certification
Status: Within a period of about 2 weeks we got our client’s Labor Certification approved.

 

We filed a Labor Certification with SWA CT (State Workforce Agency, Connecticut) in May 2003. Upon checking the status in February 2005, our office was informed that the case was closed, as we had not responded to a request sent by the SWA via fax. 

We informed SWA that our office had not received the request. The case analyst of SWA told us that he had a confirmation of the fax transmittal.

In our conversation with the SWA, we tried to convince the case analyst, that had we received the RFE we would most certainly have responded to it in a timely manner. The urgent nature of the case would have compelled us to file the response at the earliest as 6 years limit on our client’s H-1B was approaching fast.

The case analyst suggested our office to send a request in writing.  The case manager from our office who was working on the case provided an affidavit to the effect that our office had not received any requests from the SWA.  We also requested that our case be re-opened and the new RFE be mailed to us. 

Upon checking the status after a month we were informed that the decision of the SWA was still the same and the case was closed.  SWA then suggested that we should re-file the case under PERM.  

This matter was then given to Rajiv to handle, who encouraged us to follow it through further and not just accept the SWA response.  In his view, their response was legally incorrect.  He spoke with the supervisor at SWA CT, who informed us that they do not have the authority to re-open the case in these circumstances. He then spoke to the responsible senior officer at US Department of Labor (USDOL).  Finally, the supervisor at USDOL asked us to forward her the affidavit together with the documents that we had originally mailed to SWA.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
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