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 The CO appears to have agreed with us and has withdrawn denial and certified our case.
PERM - Labor Certification Sample Cases
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.
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.
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.
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.