Reason for Denial: The employer has not adequately documented its requirements as arising from business necessity. The job opportunity' requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation. However, the employer has not provided any such documentation. Because the employer did not provide documentation which adequately demonstrated its requirement(s) as arising from business necessity, this application is denied.
AUTHORITY FOR DENIAL: Pursuant to 20 CFR 656.17(h)(l), "The job opportunity's requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner."
As an alternative to an appeal, the employer has the option to correct the information provided on the application for which the denial has been received and to submit a new application to the Atlanta national processing center for review.
Folks, what are my options now? I have 7 months out-of-country time to recapture when my 6th year H1 ends in December end this year. I was about to file the extension (LCA filed) and PERM result came. Attorney strongly feels that we need to file for reconsider/review and provide evidence of the business necessity for the education and experience required for the position. However.. I don't think there is much chances of success when I compared the advertisement and O*NET job details (11-3021.00).
eugenep: file appeal to get your 7th year extension immediately, then immediately apply for your visa extension: Understood this part.
Only then reapply, if you r not sure about employer for EB3: Did not understand this. Reapply - meaning, apply for a fresh PERM after applying for 7th year extension? with the same employer? EB3 instead of EB2? Can you describe that in detail please?
Do you know what all documents were submitted as audit response for BN? Initially you said the reason for Audit 'Random' and from denial reason, it appears it was Business Necessity. It is very important to understand the documents that were provided part of Audit response, if they were not adequate to justify business necessity for the position and number of years exeperiance required then appeal wont do much. Best of luck.
I am 20Nov07 and audited for BN but I know what lawyer provided as BN justification...hoping for the best.
you are right. But, my attorney said there was no specific reason for the audit and DOL did not ask anything specific, especially there was no mention about BN when DOL choose my case for audit. Attorney mentioned that the Government (DOL) SHOULD have given an opportunity for the employer (by way of asking to submit proof of BN) before making the Denial decision. Decided to appeal and submit documents for BN along with the appeal. I have no idea what exactly is submitted along with the appeal. (You see a lot of trust with attorney here? )
Golden Man makes the rule! DOL had communicated the reason for Audit - this is the truth and only truth, I would take, if I were you. I just wish your lawyer (lie-yer) is honest, anyhow, the documentation provided with appeal will be considered to review denial decision. I also wish your lawyer is successful in demonstrating your denial as an govt error else you are in the 2 yrs 2 months waiting queue . Good Luck Bro.
hey visagcinfo, any luck with the appeal? I'm discussing my denial with attorney tomorrow, I have less than 365 days left on my 6 year H1B, wondering if I would be able to extend my H1 ....my email is [email protected]
Appeal filed. Case status is not yet changed to 'pending or in process' on DOL's site. Applying 7th year extension based on 'filed appeal'. I think that is what you have to do too, when you are within last 6 months before current H1 expires. I hope you have considered 'time spent outside the country since you first came to usa' while calculating your end of 6th year. You can file another fresh labor thru another company while the appeal is in progress.
No updates on appeal. Not expecting anything in another 3 months or even more as the DOL site says that they are currently processing the standard appeal cases with priority date in August'2007. Thinking twice about filing another PERM - considering the fact that USCIS is acting as if they have just learnt what employee-employer relationship means and they have come to know about consulting business model.
I was sort of in the same situation and went with a new PERM, process has started already. I just hope this time I do not get stuck in Audit!!! Does anyone know if by just reapplying for the same position, same company makes the case more vulnerable to audits? The denial letter had said, I can reapply with the "corrected" information. I do not understand though why those minor "issues" in the applications cannot be addressed via some letter/questions - why do they have to wait 2 years of someone's time!
Thanks folks. One step at a time.. Not even imagining GC yet when people are giving new meaning for employer-employee relationship. Have to keep getting H1 extensions until PD is reached - next biggest concern.
Hello Visagcinfo, I've been watching your case, congrats!!! My perm was denied today. I was audited, similar reason to yours... My lawyer says we can appeal and win.
My question to you is how come you were denied in December 09 and then appealed and got certified within 3 months!!!??? I mean, it's awsome for you. However, my lawyer told me that appeals usually take 1 1/2 yrs nowdays... is there anything about your case that is defferent? Thanks mate.
VivaNY: Thanks. It was 4 months. Appeal was filed in the beginning of Nov'09. That seems to be the normal turnaround for government error cases. I had no clue if my case was in government error queue or in the general reconsideration queue. My lawyer said "if they think it is their error, I expect a quick turnaround. If they throw it under general reconsideration queue, it will take long". Lawyer's comment on the denial was "they have denied on a basis which was not asked for in the audit. They should have given the employer a chance to prove the business necessity before denying on that basis".
I hope your case has strong evidence to appeal successfully.
Thanks for your prompt reply. What u said makes sense to me. My lawyer says and showed to me that they definitively wrongly applied some regulations to our alternative add (because that set of regulations is for mandatory adds). So it is definitively their mistake.
Maybe I should consider appealing then... Thanks so much for your clarification, I will talk to my lawyer again. I wish u all the best on the next step!!!