Discuss PERM case

PERM case:
India
29 Jun 2011
EB2
yes
19 Sep 2011
17 Oct 2011
denied
15 Feb 2012
231 days
18 Jan 2012
15 Feb 2012
The Department of Labor denied your PERM petition in error claiming that the Prevailing Wage Determination did not match the requirements of the ETA 9089; and that the recruitment did not include the Kellogg language.


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Users currently watching this case: zeruela, permaa, usrcdedo, durgachandra, donmax, horizon1012, Hopewell, pj74 19 Comments

Posted by usrcdedo
15 Feb 2012 #1
ask you lawyer what was the prevailing wage and what was mentioned on the perm 9089 forum.
if they are diff then you are better off doing a fresh perm than filing an MTR.
Posted by Maranatha
15 Feb 2012 #2
Hi, Please read this newsletter from Ron Gotcher on Kellog language requirement

http://imminfo.com/News/Newsletter/2012-02-15/dol-issuing-improper-perm-denials.html
Posted by durgachandra
15 Feb 2012 #3
To Maranatha,

My case also was denied because Kellogg langue. My lawyer already submitted MTR under Govt error on Jan 15th . So how do we know that our case in Govt error Q or normal Q ?
Any idea how long does it take to hear any decision under this category ?

Thanks,
Durga
Posted by Maranatha
15 Feb 2012 #4
DOL will review the case and determine if it really is an error. Sorry I don't know how to tell if it goes under gov error queue or otherwise only that if it goes under govt error queue then you will hear back very soon, since they are current.
Posted by durgachandra
15 Feb 2012 #5
thanks for the info Maranatha
Posted by donmax
24 Feb 2012 #6
Hi horizon1012, I am also on the same ship as yours, may be on the ocean view cabinet meaning June 2nd week of 2011. got audited, and denied. I have seen 4 persons, on the same month applied, got audited on the same time, denied on the same month. My attorney says "We can appeal". But the papers are not at all moving.
Posted by horizon1012
25 Feb 2012 #7
Hi donmax,

My attorney will be filing an appeal as a Govt. error, not sure if this will be taken as DOL error but lets hope for the best. I have my EB3 perm is approved and I140 is in process, hoping to get the Eb2 perm cleared.
Posted by Hopewell
27 Feb 2012 #8
My case also got denied for the same reason and appealed in govt error. Did you any one hear back from them? Durga?
Posted by zeruela
27 Feb 2012 #9
quickgcc, I think we are all under the same company... and our company is getting the heat from DOL ... just saying...
Posted by durgachandra
27 Feb 2012 #10
to quickgcc:

No not heard anything till now from my Lawyer yet, waiting for 45 days to complete (I submitted my MTR under govt error on Jan 11, so waiting till Feb end )as my Lawyer is claiming it as Govt error. I am hoping for the best .
Thanks.
Durga
Posted by Hopewell
28 Feb 2012 #11
Durga,

Is your application had kellogg language on H-14 of perm form and missed in (all) advertisements? Was ur denial is all about missing kellogg language? because if you have any other denial reason, then it may probebly be in normal queue.

Posted by durgachandra
28 Feb 2012 #12
quickgcc,

Yes my case was all about missing some words in the news paper Ad and online ad ( all 5 denial reasons).


here are my case details.

Denial Reason : On ETA 9089 the employer has indicated Primary requirements and alternate requirements for the job Opportunity.
However in the advertisements in newspaper the employer has only listed Primary educational requirement as Bachelor degree and 5 years of experience and did not include the alternate requirement of acceptance of any suitable combination of education and experience.


FORM 9089 files like this:

H-4B The position's primary requirement is "Bachelor’s Degree in Computer Science".

H-7 Is there an alternate field of study that is acceptable? YES
H-7A Alterative field of study is "Computer Engineering"

H-10 Is experience in an alternate occupation acceptable? YES
H-10B Any related IT or Software/engineering position" (Form 9089



Employer’s Advertisment was :

"Bachelor’s degree in Computer Science and Engineering and 5 years experience in job offered or related."


So My lawyer claims “or related” in paper advertisements , is sufficient to cover H-7 and H-10 section of Form 9089.
And since they cannot include work to word match in the paper advertisement, that is mentioned in Form 9089 as it is very expensive .

My lawyer has filed my case as Govt error. Not sure in which Q it will be processed.

Posted by durgachandra
02 Mar 2012 #13
Hi all,

Thank GOD !! At last MY PERM got approved !!!!


PD : April,2011
Audit : Jun,2011
Denied : Dec,2011
Appealed under in Govt error: Jan,2012
PERM APPROVED : on March 2nd 2012





Denial Reason : On ETA 9089 the employer has indicated Primary requirements and alternate requirements for the job Opportunity.
However in the advertisements in newspaper the employer has only listed Primary educational requirement as Bachelor degree and 5 years of experience and did not include the alternate requirement of acceptance of any suitable combination of education and experience.


FORM 9089 files like this:

H-4B The position's primary requirement is "Bachelor’s Degree in Computer Science".

H-7 Is there an alternate field of study that is acceptable? YES
H-7A Alterative field of study is "Computer Engineering"

H-10 Is experience in an alternate occupation acceptable? YES
H-10B Any related IT or Software/engineering position" (Form 9089



Employer’s Advertisment was :

"Bachelor’s degree in Computer Science and Engineering and 5 years experience in job offered or related."



So My lawyer claims “or related” in paper advertisements , is sufficient to cover H-7 and H-10 section of Form 9089.
And since they cannot include work to word match in the paper advertisement that is mentioned in Form 9089 as it is very expensive .
Posted by durgachandra
02 Mar 2012 #14

FYI
These small things can make big difference.



Guys please make sure if you are submitting it as Govt error ask you lawyer to draft covering letter with "Bright colored sheet" .


FYI
http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#perm_appeals9
9. I received a decision of my labor certification application for what I believe is a Department error. How should I file an appeal claiming a Department error?

In general, a Department error may be a denial due to a data entry error or a
denial for failure to respond to an audit where the employer has proof of its audit
response or proof it never received an audit request letter. If you believe your
application was inadvertently denied on this type of basis, the employer's cover letter
must clearly state that the basis for the appeal is an alleged Department error. The
Department suggests a brightly colored cover sheet stating that the appeal is being filed
because the employer believes that the Department error is the sole reason for the
denial. If accepted as a Department error, the appeal will go to the Department error
appeals queue and be processed accordingly.




FYI
http://www.aila.org/content/default.aspx?bc=1016%7C6732%7C6747%7C27861%7C27149

Answer: DOL agrees. If employers receive erroneous denials due to lack of
Kellogg language where it is not required, DOL suggests that employers file a
motion to reopen with a colored cover sheet identifying it as government error.
The new contractor staff is being trained but the application of the rules governing
when Kellogg language is needed is complex. It is possible that some erroneous
denials regarding proper use of the Kellogg language will occur. Denials that are
not consistent with the Kellogg requirements should be appealed and flagged as
government error appeals. Practice Tip: DOL will be adding and training many
contractors to work on cases in the near future. Whether the Kellogg requirement
a
Posted by Hopewell
02 Mar 2012 #15
good to hear that... what is priority date? April ??
Posted by Hopewell
02 Mar 2012 #16
good to hear that... what is priority date? April ??
Posted by durgachandra
02 Mar 2012 #17
yes April 2011
Posted by pj74
23 Mar 2012 #18
Have you appealed for reconsideration?
Posted by pj74
23 Mar 2012 #19
Have you appealed for reconsideration?

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