Perm denied by BALCA


ykancham

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Hello.

I just found out yesterday that my PERM was denied by BALCA after almost waiting for 4 years (Priority Date - Feb 2011).  We had to wait for so long because of the bad advice we got from my employers attorney. He said we would get a decision in one year.. Duhh!!!  He said that he was confident that denial would be reversed and so we can proceed with the appeal and not withdraw. But I am so disappointed now that the case has been denied and we loose this priority date.

I am on 8 th yr of my H1 B and can convert to H4 and get EAD on my wife's approved 140. ( Priority - May 2014). I also applied for another PERM through another employer and got 140 approved. (Priority - Nov 2014) .

But the question  have is - Is there any way we can get BALCA to reconsider? or keep that priority date? (I know its not possible). But any last resort before I give this up? Which one is better option H4 EAD or H1 B? Can I get back on H1 B after I convert to H4 ?

Any advice is really appreciated. Thanks in advance!!!

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There is no priority date to "keep" if there isn't an approved I-140. One option might be to request "en banc review" but there is time limit stated on the BALCA decision. This review can be requested from BALCA but it is rarely given only for major issues. The other option would be to sue DOL in federal court but that would normally require the involvement of the sponsor and whether that is worthwhile would depend on what is the reason for denial by BALCA.

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  • 2 weeks later...

Thank you for the reply.  

The reason for denial is that the ads posted didnt match the requirements in the labor application. So I dont think we have a strong case to file case against BALCA,

So, I have another question now. If I convert to H4 EAD and work for the same old employer, Can I start the process of applying a new PERM with them using old priority date and then get back on H1b after1 year?

Would I be CAP exempt if I get back on H1 B? ( I am on H1b for more than 6 years now) 

Or should I work for the I140 approved new employer on H1b / H4 EAD and do PERM transfer while working for them? 

Any advice is really appreciated. Thanks!

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