PERM Denials Due to System Glitch

The American Immigration Lawyers Association (AILA) has issued an alert regarding an intermittent technical problem in the PERM labor certification (LC) system. This glitch causes information to disappear from the completed PERM form ETA 9089 after online submission.

PERM Section K Information Mishaps

The PERM LC process typically involves the online submission of form ETA 9089. (Paper filing is possible, but rarely utilized, as the system is designed for online use.) Section K of the ETA 9089 asks for the sponsored foreign national’s past and present work history. In some verified instances, this vital information disappears after form submission.

Missing Information Leads to Denial

The loss of the Section K information can lead to denial of the PERM application. If the offered job described in the PERM LC application requires experience, the beneficiary generally must list the qualifying experience in section K. If the information is blank in the submitted form, reflecting no prior experience, the PERM LC is likely to be denied. Similarly, a PERM LC may be denied if the petitioning company correctly indicates that the beneficiary currently is employed by the company, but this is not indicated in section K.

DOL Response

The U.S. Department of Labor (DOL) acknowledges the existence of the section K problem and has characterized it as an intermittent IT issue. As of this writing, the DOL has not been able to recreate or fix this particular malfunction. The DOL Office of Foreign Labor Certification (OFLC) continues to investigate the matter.

What to Do if PERM Denied for Section K Error

If a case is denied due to section K information disappearing, it is possible to file a request for reconsideration in the “Government Error” queue. However, it is necessary to prove to the DOL that the ETA 9089 was completely filled out when submitted. The recommended best practice is to print a complete copy of the PERM LC form when it is filed.

It should be noted that this ‘best practice’ recommendation to print out the entire PERM LC is long-standing, and not specific to this latest technical problem. In fact, the Murthy Law Firm has been following this best practice since the PERM process was first implemented in 2005. A number of years ago, a similar glitch occurred, resulting in the disappearance of the section K information submitted by the Murthy Law Firm on behalf of a client. Because we had a hardcopy of the PERM LC, we were able to detect the problem and proactively have it corrected while the case was still in process.

Conclusion

The PERM process is lengthy and complex. A denial can lead to extremely harsh consequences, especially for the beneficiary. Therefore, it is essential that the DOL devote the resources necessary to identify and correct this technical problem.

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