PERM - Labor Certification Sample Cases from our office

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.

USDOL had denied a series of cases for many employers represented by various law firms. The ground of denial was that when "engineering" was one of the acceptable majors for an IT job, that created too much ambiguity for a case to be approved. DOL stated that there are fields of engineering, such as Agricultural Engineering, which are clearly inapplicable to IT positions.

This ruling had become a nation wide issue. 

We filed an MTR pointing out the defects, legal and factual, in the ruling. We also indicated our willingness to litigate this highly unfair ruling in federal courts.  DOL has, most appropriately, reversed their decision. 

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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We represented a consulting company and their employee, a Senior Quality Assurance Analyst.  USDOL had denied PERM certification after an audit holding that we had failed to submit tear sheets from our Sunday advertisements.  We filed the appropriate motion establishing that it was highly likely, if not certain, that the tear sheets were in fact submitted.  We provided evidence from our files, affidavits, and proof of our firm’s normal business practice.The case was approved in less than three weeks.

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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We represented a technology consulting services corporation and a Senior Programmer Analyst employed by the firm. We submitted electronically the applicant’s labor certification (PERM) to the USDOL.  They denied certification without a request for explanation or audit.  The USDOL denial alleged that the employer was required to show on the ETA 9089 (the PERM form) what methodology was used for the foreign degree evaluation.  We responded with appropriatemotion showing that this was clearly government error and a violation of due process.  The forms provide no way of stating this information.  We further presented several legal arguments and cases in support of our clearly justified position. Unfortunately, there is no way to spare anguish and uncertainty inflicted upon our clients, but USDOL did recognize the error and moved to correct it.

The case was approved within four weeks. 

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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We represented an IT consulting company and a Technical Project Lead employed by them.  The PERM was selected for supervised recruitment.  USDOL denied certification, alleging that the employer rejected a potentially qualified U.S. applicant without an interview.  This is one of the cases where our firm’s knowledge of various fields, including IT, paid off.  The job offered required high-end database experience.  The job applicant possessed only MS Access experience.  We established on the record that MS Access experience could not possibly translate into working with high-end databases in multi-million dollar projects.  We submitted copious amounts of evidence, including data from federal government IT deployments and case law.  We argued that the U.S. applicant was not qualified, could not possibly qualify for the position, and that an interview was not required because hiring the U.S. applicant would necessitate an unreasonable amount of on-the-job training. 

The case was approved in about two weeks.

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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We filed a Form ETA 9089 Foreign Labor Certification (PERM) for a petitioner corporation and a beneficiary Software Architect. The Department of Labor sent us an Audit Notification, which functions as a Request for Evidence in these cases, requesting information on the necessity of the high level of education and experience the petitioner required for the position and details about the process the petitioner used to advertise for the position.

The information we provided seemed to be satisfactory on those points, but the DOL denied the petition, alleging that the position included a telecommuting benefit that was not included in the advertising. After we filed a Motion to Reconsider in which we argued that, in fact, the position did not include a telecommuting benefit and explained the illogical conclusion reached by DOL, they accepted our argument of government error and certified the petition. Later, USCIS approved the I-140 petition as well.

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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