Assessing options after the labor certification denials
Question: I have been waiting for years for my labor Certification to be approved and just received a denial.
They stated that I never responded to the 45 day letter to continue with the case, and therefore, it was denied.
However, I never received the 45 day letter.
Is there anything I can do without having to start all over?
Answer: The Office of Foreign Labor Certification (OFLC) is aware that some employers or their legal representatives who have received “case closed” letters may not have previously received a “45-day” Center Receipt Notification Letter (“45-day letter”) from the Backlog Elimination Center (BEC) processing their respective cases.
In additional instances, cases may have been closed after employers or their representatives responded timely to a 45-day letter.
In the backlog, once the vital information in an application is fully entered into the OFLC database, a 45-day letter is the precursor to further processing of that application; the letter functions both as notice to the employer that its application has come up for full processing in the queue, and as a request for confirmation from the employer or its representative that the employer wishes to continue with the case.
In cases where the letter attaches a list of corrections or deficiencies in the application, an employer must correct or address these before processing can continue.
When a BEC does not receive a response to its 45-day letter, or this response is incomplete in responding to corrections, it closes the case.
Question: What should I do if I received a “case closed” letter but no 45-day Center Receipt Notification Letter? What if I responded timely to a 45-day letter but my case was subsequently closed? How can I notify the Backlog Elimination Center that I believe my case was erroneously closed and request the Center to reopen the case?
Answer: Employers who believe one or more of their cases has been closed for reasons covered by this FAQ, and who wish to request those cases be reopened, must take the following steps: E-mail the BEC where the closed cased was pending, the Dallas BEC at email@example.com or the Philadelphia BEC at firstname.lastname@example.org.
The subject line of the e-mail should read “Request to Reopen”.
Limit each e-mail request to one application or case number; the nature of the process developed to respond to these requests limits to one the case numbers that can be addressed as a result of any inquiry. Employers with requests for multiple reopenings may submit as many e-mails as appropriate.
The body of the e-mail must include the following information, to allow the BEC to locate, reopen, and prepare to resume processing the appropriate case: Name of employer and correct current address. Correct ETA case number, not a case number from a state workforce agency; alternatively, the e-mail should explain why an ETA case number cannot be provided.
Correct current contact information for the employer’s attorney or agent (including name, address, and e-mail address).
Name of the alien named on the application.
The body of the e-mail must describe the reason(s) for the request, that is, why the employer believes the case was closed improperly.
Question: What can I expect in response to my request to reopen?
Answer: Upon each Center’s receipt of the employer or representative’s e-mail request, the Center will issue a standardized, automated electronic notification that the Center has received the request. Response time will vary, depending on volume of requests received through this electronic mailbox.
The employer will receive a second e-mail informing them of the BEC’s determination to either reopen the case or keep the case closed.
If the employer’s request is approved and the case reopened, this second e-mail will include a screenshot of the employer’s case reflecting the case is active.
If an application is incomplete, the second e-mail will also include the 45-day letter originally sent to the employer and a corrections list.
Employers and their representatives will not be receiving a separate 45-day letter or corrections letter by mail, and should treat these documents as requests for action.
Question: May I contact the BECs by regular mail instead of email?
Answer: No, the request to re-open a case must come into the centers electronically.
Question: Who may make the request to re-open a case if we believe it was improperly closed?
Answer: Only the employer or attorney of record may make the request to re-open a case.
A request from an alien will not be addressed.
Question: Do I have to submit my request to re-open a case within a certain time period?
Answer: Yes, to be considered for reopening, all requests must be received by a BEC within 30 days of the publication of the policy announcement or within 30-days of the receipt of a case closed letter, whichever is later.
Question: What do I do if I have not received a “45-day” letter by July 21, 2006?
Answer: If an employer does not receive a “45-day” letter by July 21, 2006, email the appropriate Backlog Elimination Center at email@example.com for the Dallas BEC or firstname.lastname@example.org for the Philadelphia BEC.