PERM and Inadvertent Errors

images.jpegThe current labor certification process known as PERM has been around for several years now.  While it was originally touted as being a streamlined, easier way to do the labor certification process that would get rid of backlogs, etc.  it has not turned out that way at all.  Instead, it has become what I would call a mess.  The Department of Labor is no longer interested in just protecting workers, which is what the labor certification process was created to do.  The idea behind the system was to ensure that employers followed a process that was intended to appraise US Workers of the actual job and job requirements and that those US Workers were not scared off from applying, and were given a fair chance at the job opening.  In addition, the process makes sure that those US Citizens are only denied the job for valid, job related reasons.  The Department of Labor, however, has decided that any mistake in paperwork, no matter how minor, should be grounds for a denial whether or not it actually affects whether US workers were adequately appraised of the opportunity and whether or not it means that the employer did or did not follow the correct procedures.  A couple recent cases illustrate this.

The first case (Matter of Karam Kaur Khasriya LLC, 7/14/16) shows that BALCA (the appeals board for denied labor certification cases) does have a sense of irony.  In this case an employer submitted a recruitment report that stated that “no qualified persons applied” and that “there were no resumes to submit” to the DOL.  The DOL officer determined that the statement “no qualified persons applied” could mean that unqualified people applied, and therefore, the employer should have provided those resumes and a complete recruitment report in response to the Audit, which it did not.  Therefore the officer denied the Labor Certification.  In its motion to reconsider, the employer did submit a revised report clearing up the language by saying that “no person applied”.  The DOL Officer stated that the revised report did not overcome the deficiency and upheld the denial

BALCA, in looking at this case, determined that the officer was correct in denying the labor certification initially because its interpretation of the language was reasonable.  In looking at the revised report, BALCA noted that documents submitted in a Motion to Reconsider are not automatically part of the record unless the officer agrees to consider the document.  In this case, BALCA stated, the officer stated that the revised report did not overcome the grounds for denial, therefore, according to BALCA the officer considered the report.  Furthermore, BALCA stated that the officer did not explicitly state that the report would not be accepted, therefore a reasonable interpretation of the language used by the officer was that the report was accepted.  BALCA then went on to find that the revised report clearly showed that no one applied and overcame the grounds for denial, so the case was certified and approved.  BALCA showed that “reasonable” interpretations are a two way streak.

In two other cases, BALCA overturned denials where the advertisements where not exactly what was listed in the Labor Certification application.  In one case the ads listed a wage range, whereas the labor certification application listed one wage.  In the second case, the ad listed 24 months of experience without stating what job titles or areas would suffice for the experience and the labor certification application listed 24 months experience in a particular job area AND, in the alternative, 24 months experience in other job areas.  In both cases BALCA stated that the ads reasonably appraised applicants of the job being offered and did not create an impediment to anyone applying.   Considering that the differences between the ads and the application were  inconsequential at best, it is hard to understand why the case was denied by the Department of Labor to begin with.

The above demonstrates two important principles.  First, the Department of Labor will sometimes deny cases on very spurious and minimal grounds.  It pays to check and double check all paperwork and try to make it all as consistent as possible and to follow the rules.  However, because of the DOL’s tendency to pick on very small issues, there is no way to protect against all possibilities.  This leads to the second principal: Appealing such a denied case can be a good idea in many cases.  While it use to be that BALCA would basically act as a rubber stamp for the DOL (except in some egregious cases), recently (in the past year or two) BALCA  has become much more independent and is now truly carrying out its function of overseeing this process.  BALCA is now infinitely more reasonable in its interpretations and willingness, when it can, to overlook small mistakes as long as the overall process was sound.  Considering the point of the process is to protect US Workers NOT to penalize employers who make inconsequential mistakes, this approach is welcome.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

So your EB-1 was denied, should you appeal?

imagesWe have had clients contact us wanting to appeal the denial of their case by USCIS to the Administrative Appeals Office (AAO).  Generally, our response to people is that appeals are extremely difficult to get approved, and usually not worth the money.  However many people still want to appeal and there are certainly many attorneys out there who will appeal cases telling people that they have a “good chance” at winning the appeal.  The question is, what are the actual chances of winning on appeal?

Well, we can now answer this as the AAO released a detailed list of their adjudications over the past several years.  So lets look at some of those numbers now:

EB1A: Extraordinary Ability

This is probably the type of case we most often see people wanting to appeal denials.  The EB-1A category is hard enough to  begin with, with only about a 50% approval rating.  How is it on appeals?  Well, in 2011 there were a total of 146 cases decided by the AAO.  Of those, 137, or 93.9%, were dismissed.   Only 8, or 5.4%, were sustained (i.e. the EA was approved by the AAO), and only 1 (or 00.7%) were remanded to USCIS for further decision.  In 2012 93.6% (204 out of 218) cases were dismissed and only 6.4% (14) cases were sustained.  In 2013 92.4% of cases were dismissed (122 out of 132). 8 cases were sustained (6%) and 2 were remanded (1.6%).  And in 2014 88 cases (91.7%) of cases were dismissed and 5 cases were sustained (5.2%) and 3 cases were remanded (3.1%).

EB-2 National Interest Waiver

Unfortunately USCIS has not released approval statistics for this category, but we know it is much higher than 50%, probably around 70% or so.  However, for the appeals, the rates are very similar to the EB-1A (but much fewer cases were decided).  IN 2011 96.5% of cases appealed in this category were dismissed.  In 2012 94.8% of cases were dismissed.  In 2013 94.3% of cases were dismissed and 92.7% of cases were dismissed in 2014.

EB-1B:  Outstanding Researcher

The EB-1B category generally has a very high approval rating overall, but except for one year, this did not carry over to the appeals area.  In 2011 only 68.8% of cases were dismissed which is actually not bad.  This means that almost 30% of the appeals were sustained, which is much higher than the EA and NIW.  This changed rapidly in 2012 and 2013, when the rate of dismissal increased to  97% and 95% respectively.  This peaked in 2014 when 100% of cases decided were dismissed.

CONCLUSION

What the above shows is that, for scientists, appealing a case is usually not a good idea as it is extremely difficult to get it approved.  In most cases, refilling the case, either right away or a little while down the road, is usually the best course.  Of course every case is different, and there are certain cases for which an appeal actually makes sense.  Generally however, if the only response on appeal is that USCIS made the wrong decision, it will not work.  There generally has to be something else – either USCIS mis-stated the law in some way, did not actually consider certain evidence at all (i.e. it was not discussed at all), or stated that certain evidence was not probative when, in actuality, it was obviously very probative  (i.e. your work had been cited 1000 times, but the officer says that citations are not probative of the importance or impact you work has had).  Not even every case with this type of problem will get approved on appeal, it simply increases the likelihood of success.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.