Type "PERM denial" into a search engine and it becomes apparent: erroneous PERM denials are becoming widespread. Frustrating stories abound in online forums about cases that have been pending for two years, due to an audit, only to be denied in the end with illogical rationale or plain government error.
- Denial based on recruitment ads that did not include job requirements, which DOL claims makes the job opportunity appear less favorable than it is. Fact is, regulations specify what must be included in ads, and job requirement is not required, but allowed. Furthermore, ads without job requirements would only encourage applicants, which have the opposite effect of what DOL claims.
- Denial based on recruitment ads that did not include special requirements (e.g., J2EE/Java, etc.), which DOL also claims makes the job opportunity appear less favorable to would-be applicants.
- DOL audits a case to request job requirement justification, but denies for a completely different reason due to error. In one example, DOL failed to see a copy of one of the recruitment ads despite that ad being included in the audit response.
- Denial due to the fact the employer accepts an alternative minimum requirement, which DOL feels is dissimilar to the primary requirement (e.g., MS+4 or BS+8).
With regards to example 1 and 2, PERM regulations do not require job requirements in ads and DOL's own FAQ indicates minimum education and experience requirement are not required in ads. In fact, DOL is still approving cases, after audit (i.e., after having reviewed the ads), filed with ads that do not contain any job requirements.
How often does DOL err in denying deserving cases? Often enough for DOL to post processing time for "Government Error Appeals" and "Standard Appeals." See: http://icert.doleta.gov/ (click on "PERM Processing Times").
Obviously, an unexpected PERM denial is frustrating for the sponsoring employer who spent thousands of dollars and numerous hours recruiting and evaluating applicants, but that disappointment pales in comparison to the foreign national employee whose future suddenly feels unsettled. The fact the vast majority of PERM cases are still being approved only makes the unlucky few feel infinitely more singled out and slighted.
Most likely, the culprit to this troubling trend is inadequate training at DOL. Perhaps the high unemployment rate puts DOL adjudicators in Atlanta, who are out of touch with the tech economy, in the mood to deny. Regardless of the reason, frustration is at an all time high for everyone involved.
Fortunately, there are often creative ways to minimize or even completely avert the setback caused by a bad DOL decision. The best available strategy depends on numerous factors including the employee's qualification, job, country of birth, when the denied petition was filed, the likelihood of winning an appeal, etc. With so many factors to weigh, each scenario must be analyzed by a qualified attorney.