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Permanent (PERM) Labor Certification Program

What is the PERM Appeal Process?
  • Per 20 CFR 656.24(g), it is an opportunity for an employer to request a Certifying Officer (CO) reconsider denial of an PERM labor certification application (ETA Form 9089)
  • Per 20 CFR 656.26, it is an opportunity for an employer to directly request BALCA review a CO’s decision to deny an ETA Form 9089
PERM Appeal Process Overview
  • The ANPC receives PERM appeals (Request for Reconsideration or Request for Review)
    • All appeal requests must be filed with ANPC
    • The ANPC reviews and analyzes all Requests for Reconsideration to make a decision
    • The ANPC only prepares and submits a case file to BALCA for Requests for Review. No ANPC review involved.
Appeal Process Overview (continued)
  • Requests for Reconsideration
    • The CO will either overturn or uphold the initial denial reason(s)
  • The CO may request additional information through a Request for Information (RFI) letter prior to making a final decision
    • The employer must respond to the RFI within the allotted time-period (usually fifteen (15) days)
    • If the employer fails to timely respond, the ANPC will adjudicate the Request for Reconsideration based on the information provided in the initial request
    • If the employer timely responds, the CO will consider the information the employer provided (in addition to the initial arguments the employer made) to adjudicate the Request for Reconsideration
Appeal Process Overview (continued)
  • An overturn occurs when the CO makes a favorable decision to re-evaluate the denial reason(s) and either:
    • Certifies the application; or
    • Resets the application for additional processing.
  • An uphold occurs when the CO agrees with the denial reason(s)
Appeal Process Overview (continued)
  • If upheld, the CO will document the reason(s) why he or she did not accept the employer’s arguments in a Notice of Decision (NOD) letter
    • The employer has 30 days to respond to a NOD
    • If the employer does not timely respond, OFLC will administratively withdraw the Request for Reconsideration from processing. OFLC will not forward it to BALCA for Review.
    • If the employer timely responds and seeks to continue, OFLC will forward the Request for Review to BALCA
Common Issues
  • There are two options for filing an appeal:
    • Request for Reconsideration (Reconsideration)
    • Request for Review (Review)
  • How does an employer submit a request for reconsideration or review to the ANPC?
    • The employer must clearly identify in its cover letter that it is making a Request for Review
    • If the employer does not specify the type of request, the ANPC will process the case as a Reconsideration
    • If the employer requests both Reconsideration and Review, the ANPC will process the case as a Reconsideration
Can an employer modify the information it submitted on the ETA Form 9089?
  • No. An employer cannot make modifications to the ETA Form 9089 after it has been filed. 20 CFR § 656.11(b).
  • If the ANPC denies the application, the employer may request Reconsideration within 30 calendar days from the date of the denial letter. If the CO:
    • Accepts the employer's request, the CO will make the change(s) to the ETA Form 9089 and certify the application or reset it for additional processing; or,
    • Does not accept the employer's request, the CO will issue a NOD informing the employer that it may make a Request for Review with BALCA, affirmatively in writing, no later than thirty (30) calendar days from the date on the NOD.
What happens after the CO makes a decision to uphold a Request for Reconsideration?
  • What happens after the CO makes a decision to uphold a Request for Reconsideration?
    • If, after considering the Request for Reconsideration, the CO makes a decision to uphold the reason(s) for denial, the employer will receive a NOD letter
    • The NOD letter will outline the reason(s) for upholding the denial
    • The employer has 30 days to respond to the NOD letter
What happens after the CO makes a decision to uphold a Request for Reconsideration? (continued)
  • If the employer does not respond to the NOD letter within 30 days, OFLC will administratively withdraw the request
  • If the employer responds to the NOD letter within 30 days with a Request for Review, OFLC will forward the request to BALCA. The employer will receive e-mail notification confirming OFLC sent the case file to BALCA.
If the employer filed a Request for Reconsideration, can the employer later change it to a Request for Review?
  • If the employer filed a Request for Reconsideration, can the employer later change it to a Request for Review?
    • If less than 30 days have passed from the date of Final Determination, the employer may change its Request for Reconsideration to a Request for Review
  • How can an employer check the status of a Request for Reconsideration?
What happens after BALCA makes a decision on a Request for Review?
  • What happens after BALCA makes a decision on a Request for Review?
    • BALCA will notify, in writing (U.S. mail), both the CO and the employer when it has made a decision
  • BALCA can either uphold or overturn the CO’s decision
    • The ANPC will enter the decision to uphold or overturn a denial into the Permanent Online System. The case status in iCERT will either:
      • For upholds -> revert to "Denied;" or
      • For overturns -> show either "In Process" (if the case is reset for additional processing) or "Certified"
What if the ANPC does not enter the BALCA decision into the Permanent Online System?
  • You may:
    • Upload a copy of the BALCA decision to the Permanent Online System; or
    • E-mail a copy of the BALCA decision to the ANPC help desk at plc.atlanta@dol.gov.
  • Upon receipt, the CO will review the BALCA decision and enter the appropriate action into the Permanent Online System
What if the BALCA decision is not entered in the Permanent Online System? (continued)
  • The employer also can check the Office of Administrative Law Judges (OALJ) website at www.oalj.dol.gov
    • Use the search functionality to determine whether BALCA has made a decision
    • A .PDF document will be available for download if a decision has been made
Filing Tips and Information
  • Make sure scanned documents are clear and legible
  • Use the upload function in the Permanent Online System
  • There is no longer a separate queue for Government Error
  • Clearly indicate whether the employer is making a Request for Reconsideration (656.24(g)) or Review (656.26)
    • Unspecified or both = Request for Reconsideration
Filing Tips and Information (continued)
  • If responding to a "non-response" denial, include the "missing" documentation and proof it was timely filed with the Request for Reconsideration
    • For example, if denied for "non-response to audit," provide the audit documentation (with proof of submission)
  • Respond to the NOD letter. If the employer does not respond timely, the ANPC will administratively withdraw the appeal request and conclude processing.
  • Do NOT include information that was not part of the file at the time the employer submitted it (e.g. referral letters requested or received after the employer filed the application)
Filing Tips and Information (continued)
Submission Instructions
  • Preferred Method: Upload documents to the Permanent Online System
    • Provides a faster application processing time
    • Reduces employer costs (e.g. no mailing cost)
    • Can be done in four easy steps
Employer Benefits Related to Uploading
The employer receives many benefits, which include:
  • Immediate confirmation of successful upload;
  • The ability to upload each section under the respective drop-down;
  • Reduction in costs and burdens from not having to submit documentation via mail, e-mail, or facsimile;
  • Streamlined process for submitting responsive documents;
  • Expedited review of PERM labor certification applications by connecting the responsive documents directly to the application; and
  • Integrity and receipt of information submitted.
Reminders
  • The maximum size limit for saving a single uploaded document is 30MB
  • Recommend separating document(s) that exceed (or seem to exceed, if the exact size is not known) the 30MB limit into two or more documents
  • For example:
    • Case A-12345-XXXXX Reconsideration – Part I
    • Case A-12345-XXXXX Reconsideration – Part II
2. Send Documents to ANPC via E-mail
  • Employer receives fewer benefits compared to uploading, including:
    • No costs associated with e-mailing documentation;
    • Immediate acknowledgement that the ANPC received the documentation; and
    • No delay for ANPC to receive and process documentation.
3. Send Documents to ANPC via Mail Service
Although permissible, this method has many drawbacks to employer, which include having:
  • Costs associated with sending documents to the ANPC via regular postal mail, certified mail, FedEx, UPS, etc.;
  • Delay in the receipt and processing of documentation; and
  • No confirmation of receipt.
How to Contact ANPC for Assistance
  • PERM General Program and Processing Questions
    • Help Desk: PLC.Atlanta@dol.gov
    • Telephone: (404) 893-0101
    • Mail: U.S. Department of Labor Office of Foreign Labor Certification Atlanta National Processing Center Harris Tower 233 Peachtree Street N.E., Suite 410 Atlanta, GA 30303
  • Check the OFLC website on regular basis for PERM updates, FAQs, webinar announcements, and updated forms at www.foreignlaborcert.doleta.gov