Appealing a Denied ETA Form 9089

How the U.S. employer (acting on behalf of the foreign worker) may appeal the DOL’s decision to deny the ETA Form 9089.

If you are a foreign worker who wants to obtain a U.S. green card, you have likely heard or read a lot about the "PERM" process (also known as the "labor certification" process). One of the ways that foreign workers can get U.S. green cards is by finding a U.S. employer who will complete the PERM process on the foreign workers’ behalf. That employer is then called the foreign worker’s green card "sponsor."

As the green card sponsor, the employer must advertise for the foreign worker’s prospective job and then complete the ETA Form 9089. The ETA Form 9089 contains information regarding the employer, the foreign worker, and the prospective job duties and requirements. The employer electronically files this form with the U.S. Department of Labor (DOL).

The DOL can either approve or deny the ETA Form 9089. This article focuses on how the U.S. employer (acting on behalf of the foreign worker) may appeal the DOL’s decision to deny the ETA Form 9089.

Typical Reasons Why an ETA Form 9089 Is Denied

Before discussing how to appeal an ETA Form 9089 denial, it is helpful to outline a few of the reasons why the DOL may reject it in the first place. Among the multitude of possible reasons are mere typos, such as errors in the employer’s name or address.

The DOL may also deny the ETA Form 9089 if it feels that the job duties are not typical of the job, if the employer listed atypical job requirements (such as knowledge of a foreign language), or if the employer listed job requirements that exceed what the position actually requires (such as requiring a Ph.D. degree for a gas station worker).

(For a more comprehensive list, see Why Labor Certification Is Denied.

How To Appeal

The DOL will send the employer notification of the ETA Form 9089 denial. The employer and immigration attorney will review the reasons for denial. If the employer feels that the DOL wrongfully denied the ETA Form 9089, the employer can file a Request for Reconsideration.

The Request for Reconsideration must be delivered to the DOL no later than 30 days from the date of the denial notice. It should outline the employer’s responses to all of the denial reasons and specifically refute or argue against each one.

For example, let’s say that one of the reasons is that the DOL mistakenly thought that the ETA Form 9089 stated the position required a Master’s Degree, when really the

ETA Form 9089 stated that the position required only a Bachelor’s Degree. In its Request for Reconsideration, the employer should include a copy of the submitted ETA Form 9089, highlight the relevant section that states the Bachelor’s Degree requirement, and emphasize this mistake to the DOL.

One of the advantages to filing a Request for Reconsideration is that the applicable regulations permit the employer to submit additional supporting documentation (as long as the employer had this documentation at the time the ETA Form 9089 was filed). This allows the employer another opportunity to provide the DOL with copies of resumes or advertisements that the DOL may have questioned in the notice of denial.

After receiving the employer’s Request for Reconsideration, the DOL will review the documents and arguments (which may take several months to years). The DOL may then decide to approve the ETA Form 9089. This is the best-case scenario.

Or, the DOL may deny the ETA Form 9089 again. This is the worst-case scenario. If the DOL denies the ETA Form 9089 again, the employer has the option of appealing to the Board of Alien Labor Certification Appeals (BALCA).

My Employer Appealed My ETA Form 9089 – Now What?

Employer Can Refile – But Not for the Same Position

As stated above, the DOL may take several years to review the Request for Reconsideration. In the meantime, your employer can file another ETA Form 9089 for you. However, this second ETA Form 9089 can NOT be for the same position as the position that is listed on the ETA Form 9089 that is undergoing review.

For example, let’s say your employer filed an ETA Form 9089 for you for the position of Accountant. The DOL denied that form, and your employer appealed. While this first ETA Form 9089 appeal is pending, your employer can NOT file another one for you for the same position. Your employer would have to use a different position such as Manager, Financial Analyst, and so forth.

If The Employee is Already in The U.S. on H-1B Status

Additionally, if you are nearing the sixth year of your time on an H-1B visa, you may be able to extend your H-1B status beyond the sixth year if your ETA Form 9089 was denied and is now pending appeal. To be eligible for this extension, your employer must have filed the ETA Form 9089 sometime before you began your sixth year of H-1B status.

For example, if you began your H-1B status in on January 1, 2011, your sixth year would begin on January 1, 2016.  Therefore, your employer must have filed your ETA Form 9089 any time before December 31, 2015 for you to be eligible to extend your H-1B past the sixth year.

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