BALCA Upholds Denial of Incomplete PERM Application
Posted May 23, 2008
©MurthyDotCom
In the case of Matter of 5th Avenue Landscaping, Inc., the Board of Alien Labor Certification Appeals (BALCA) upheld the Certifying Officer's (CO's) denial of a PERM labor certification application in which the employer failed to include several responses on the ETA 9089 Form. The employer blamed the error on individuals who assisted with the form filing. According to BALCA, even though the employer provided responses after requesting a review of the application, the denial was still proper. The Murthy Law Firm was not involved in any aspect of this case. The information is included here to help MurthyDotCom and MurthyBulletin readers - employers and employees, alike - realize that it is important to be thorough and accurate when preparing PERM cases. As explained in our April 11, 2008 article, Simple Errors May Lead to Denials of PERM Cases, there is a distinction between harmless errors and outright omissions.
©MurthyDotCom
Harmless Error and Outright Omission
©MurthyDotCom
In Matter of HealthAmerica, BALCA held that denials due to inadvertent, harmless errors may be inappropriate but substantive omissions will result in denial. An example of something that potentially could be viewed as a harmless error is listing an incorrect date (that is otherwise compliant with Department of Labor regulations) in the recruitment section of the ETA 9089 Form. Leaving blanks instead of providing information on the minimum requirements for the position is an example of a substantive omission that will result in denial of a PERM application. In the 5th Avenue Landscaping case, the PERM application was submitted with numerous omissions.
©MurthyDotCom
Policy Reasons for Denying Incomplete Applications
©MurthyDotCom
BALCA held that the proper remedy in this case is for the employer to file a new application for labor certification. It was found that, although the employer had submitted a corrected application, as an appeals board, BALCA could only review the initial decision. Since the initial decision to deny the incomplete application was found to be correct, BALCA upheld that decision.
©MurthyDotCom
Although it was not mentioned in this case, BALCA has consistently said it would be improper to allow employers to fix errors after submission because that would reward them for filing hasty or inaccurate PERM applications. Instead, requiring a new application in these cases would dissuade applicants from filing incomplete PERM applications just to get an earlier priority date.
©MurthyDotCom
Conclusion
©MurthyDotCom
It is important in all types of immigration filings to be accurate and complete in the initial filing. It is often not possible to fix errors after the fact, particularly those that are significant. Ever since the HealthAmerica decision, a body of case law has developed that distinguishes between inadvertent, harmless errors and careless omissions in PERM filings. BALCA has provided some flexibility with innocent mistakes, but not for substantive omissions that appear to be the result of filing hastily. To prevent such denials, employers should review PERM applications carefully before submitting the final application.