The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced its intention to reverse its denials of PERM labor certification applications that were issued based on allegedly incomplete answers to Question H.10-B on Form ETA-9089. This question asks entities filing this form to identify the job title of any acceptable “alternate occupation” in which the beneficiary of the application may have gained qualifying experience. The instructions to Form ETA-9089 require such entities to “enter the alternate occupation that is acceptable for the job offered.”
There has recently been a pattern of denials of PERM labor certification applications on the basis that the entities filing these applications have not adequately answered Question H.10-B. The OFLC notes that some entities have answered this question by including statements such as “see H.14 – Special Skills” and providing the offered position’s minimum requirements in Section H.14 or indicating “experience in” a particular profession/industry, rather than by providing specific alternate job titles or occupations. Applications that have included such statements have been denied on the basis that the information provided in H.14 does not identify the alternate occupations that are acceptable to meet the experience requirements for the position to be certified and that the applications are thus incomplete.
The OFLC has now announced that it has evaluated these denials and determined that, while they are appropriate, it has not been consistent in its issuance of denials for this reason. The OFLC has ceased issuing denials based on the H.10-B issue for pending applications and will not deny any application for this reason that was submitted on or before May 30, 2023. The OFLC expects to have in place the updated version of Form ETA-9089 by this date.
In addition, the OFLC will overturn any previously issued denials based solely on the H-10.B issue. The OFLC will identify applications that were denied based on the H-10.B issue and for which a motion for reconsideration has not yet been filed. Any entities whose PERM labor certification applications were denied solely for this reason and have not yet requested reconsideration are no longer required to do so. If a motion for reconsideration has been filed, the OFLC will prioritize processing of any pending reconsideration requests based solely on H.10-B denials. For applications that were denied on additional grounds, the OFLC will overturn the H.10-B denial reason, but will uphold the denial on the additional grounds if the entity has not filed a request for reconsideration of the additional denial reason or where the additional denial ground is determined to be appropriate.
T&S Takeaway
The OFLC’s announcement is welcome news, since it clarifies a situation that had been in limbo for some time and recognizes that the denials of PERM labor certification applications based on allegedly incomplete answers to Question H.10-B may not have been appropriate. Entities that have received such denials should expect to receive approvals soon and are encouraged not to file additional motions for reconsideration. Further, any applications that contained the disputed language cited above and are currently pending with the OFLC should not be withdrawn.
