Perm denied.. need help

[harsha413]

I am posting this on behalf of my friend. He used 6 years (Jul 2007 - Jul 2013) of H1B. He applied for labor in Nov 2012 (6th year of H1B). So he is not eligible for H1B extension. He applied for MBA (F1) in Jul 2013. Now the change of status application (H1 to F1) status is pending with USCIS.

 

This week he got PERM denial notice from USCIS. The denial reason is..

 

Denial Reason:

 

The Notice of filing for the application for permanent employment certification directs applicants to provide any documentary evidence on the application to the employment service office AND/OR the regional certifying officer of the depart of labor(Atlanta Processing Center, DOL-ETA, Harris Tower, 233 Peachtree Street, Suite 410, Atlanta GA 30303); thus, giving prospective applicants the "options" of where to provide any documentary evidence on this application. This is in violation of regulation 20 CFR 656.10(d)(3)(iii), which states "the notice must provide the address for the certifying officer". Although the notice contains the appropriate address of the appropriate certifying officer (Atlanta National Processing Center, HArris Tower, 233 Peachtree street Suite 410, Atlanta, GA 30303); giving an option of where to provide the documentary evidence is the misrepresentation that the evidence can be sent to either location, which is in violation of the regulation.

 

AUTHORITY FOR DENIAL: pursuit to the department's regulations at 20 CFR $656.10(D)(3)(iii), the notice must provide the address of the Atlanta Certifying Officer.

 

Queations:

1. Can we challenge this decision?

2. What other options my friend has (for this labor)?

 

Thanks in advance for the help.

[pontevecchio]

I suspect only a Lawyer can make anything of the denial. Your friend should ask his company Lawyer as to further steps to be taken .

[t75]

YOU cannot do anything.  Your friend can do nothing on his own. HE did not apply for labor on his own behalf. You and he need to understand his place in the process.

 

Your friend should discuss his options with his employer and the employer's attorney.

[Attorney_9]

In general, the Department of Labor and Board of Alien Labor Certification Appeals (BALCA) are taking a very strict interpretation to the regulations on the Notice of Posting. 

 

It would be wise for your friend's employer to consult with an attorney who has the opportunity to review the document in question, before deciding how best to proceed.