Yes! According to USCIS-NBC in meeting held in October 2011 with AILA, even if your case has been denied by USCIS, and then subsequently denied by an Immigration Judge, you can still apply and get your work permit while your case is on appeal before the Board of Immigration Appeals (BIA) or later if your case is with the Cirucit Court of Appeals in your area.
You must demonstrate proof of the pending appeal in the form of
- a copy of the file stamped Form EOIR-26 where block 6 indicates that the Form I-485 is at issue in the appeal
- a file stamped copy of the Petition for Review wherein the alien is appealing the fact that the BIA affirmed the IJ’s denial of the Form I-485,
- or in cases where an Appeal of an I-485 has been remanded to a lower court, to the BIA or Immigration Court, a copy of the Court Order remanding the matter.
Ricky Malik, Esq.
www.rmlegal.com
Frequently Asked Questions About Challenges In The Labor Certification Process
During employment-based immigration, the labor certification process is frequently among the most challenging steps for both employers and employees. As employers face this process, numerous questions can arise concerning common setbacks and procedural hurdles. Here, we address some of the most common concerns to help streamline your path. If specific complications occur or you require tailored guidance, it’s advisable to seek advice from an Alexandria, VA labor certification lawyer.
What typically causes delays in labor certification?
Several common factors can lead to delays during labor certification. Issues frequently arise from incomplete or incorrectly filled-out forms, missing documentation, or discrepancies in job descriptions and recruitment efforts. Additionally, processing times at the Department of Labor (DOL) can fluctuate significantly, and failing to respond promptly to DOL requests for information can also stall the process.
How do inaccuracies in job descriptions impact labor certification?
Our labor certification legal counsel shares that accuracy in the job description is crucial for a successful labor certification. Even minor inaccuracies can trigger extensive scrutiny from the DOL, potentially causing denials or lengthy audits. It’s critical that the job description accurately reflects the job duties, education requirements, and experience level. Consistency in recruitment advertising and clarity of the job offer also help avoid unnecessary complications or challenges from the DOL.
Why would a labor certification application be audited?
The Department of Labor randomly audits labor certification applications, though certain red flags greatly increase the likelihood of being selected. These include unusually high qualification requirements for the job, inconsistencies in documentation, or situations where the employer is a family member or closely associated with the sponsored worker. Additionally, if the salary offered appears significantly lower than prevailing industry standards or if recruitment activities seem inadequate, an audit is more likely. Having an experienced Alexandria labor certification lawyer assist in application preparation can help minimize these risks.
What happens during an audit of a labor certification?
When a labor certification application is selected for audit, the DOL requests detailed documentation to verify the authenticity of the recruitment process and job availability. This typically involves providing copies of job advertisements, recruitment summaries, resumes received, interview records, and justification for candidate rejection. Employers usually have 30 days to respond. Failure to provide thorough, timely documentation, which our work authorization attorney will assist with, can lead to the denial of the application. While audits are not uncommon, thorough and precise documentation from the outset reduces the likelihood of an unfavorable outcome.
Can a denied labor certification be appealed?
Yes, employers have the option to appeal a denied labor certification. The appeal must be filed with the Board of Alien Labor Certification Appeals (BALCA) within 30 days of the denial notice. The appeal should clearly outline the reasons why the denial was erroneous or unjustified, supported by relevant documentation. Appeals can extend the certification process significantly, and success often depends on addressing the specific issues cited by the DOL. A thorough initial application can prevent many denials, but if an appeal becomes necessary, proper legal guidance from our employment certification attorney is crucial for presenting the strongest possible case.
Professional Support for Your Labor Certification Challenges
If you’re facing difficulties in your employment-based immigration process, working with a knowledgeable Alexandria labor certification lawyer can ease the burden and improve your chances of success. The Law Offices of Ricky Malik, P.C., with offices in Maryland and Virginia are here to provide clarity, guidance, and dedicated support to streamline your immigration journey. We are committed to simplifying your immigration process.
