PERM APPROVED; I-140 DENIED after RFE due to Clerical error


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My PERM got approved and my employer applied for I-140 in premium processing. We received RFE after 1 week asking 


> If the beneficiary is qualified for the position


I have Bachelor degree from India and Lawyer by mistake filed Section H, number 9 of ETA 9089 saying that foreign degree is not acceptable but other sections of H clearly says foreign degree is acceptable.


Lawyer responded to RFE saying there was a clerical error in section H.9 which was marked as 'No' and provided respective documentation proving foreign degree. After 2 weeks, we received denial response for I-140 which says though beneficiary has education equivalent to bachelor's degree in Unites States but does not meet minimum requirements of ETA form 9089 section H.


Please let me know if appealing could provide positive results. It looks like this error should have been caught during PERM by DOL. As PERM is approved, I-140 was denied showing section H of ETA 9089 form. Can this be treated as mistake by DOL and appealed as Government Error reconsideration? What are the chances that my appeal will be successfull? OR Should I start new labor through new Employer? OR what are the chances of labor and i-140 getting approved through same Employer?


Thanks & Regards,




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If the ETA Form 9089 says that only a U.S. degree is acceptable, there could be a long fight ahead. If Section J clearly indicated that the name and address of the awarding school as being a foreign, non-U.S., school, then there is a clear argument that DOL was aware that saying no to H.9 was a typo. Remember if there is any argument against that position, any reason why DOL might not have thought there was a discrepancy, then the argument is weaker. Overall, the essential fact here is that these are arguments being made to USCIS, which can win or lose - however right the argument might be.


A person in this situation might want to see if the employer is willing to do a new PERM case withe H.9 being answered yes.

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  • 3 weeks later...
  • 1 month later...

Hi Attorney_15,


Thank you for the valuable input. I am in the same situation as above. We received a denial notice saying beneficiary does not meet minimum qualification. i.e candidate does not have bachelors degree in US. (This is due to H.9 was a clerical mistake).


I have BE ( 4 years degree) and have 15 years of IT experience and EB2 PERM is already approved.


I am not sure how to ask this question, please let me know - are there any win cases before after responding to USCIS on this subject? 

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  • 3 years later...

Hi Freindsam/Balaji,

I am also in the same situation , please let me know what happened to you cases is there any way to get the I140 approved with the same perm approval or do we need to file the PERM again.

any response will be really appreciated.


Also if we need file the New firm can we use the same wage determination and advertisement process and just file the PERM again ? or do we need to start from scratch like wage determination ,advertisement and the PERM ?






Edited by kapil1503
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