Simple Errors May Lead to Denials of PERM Cases
Posted Apr 11, 2008
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Everyone who has had contact with the U.S. immigration system knows that standardized government forms play an important role. It is necessary to use the correct forms, provide the proper information on the forms, and pay any appropriate fees for submitting those forms. The inaccurate placement of a checkmark on a form or a slight mistake in the information provided can make an enormous difference. In the world of PERM labor certifications, a body of law has been developed to distinguish between inadvertent typographical errors as opposed to omissions or substantive errors in filings. Typographical errors potentially can be corrected, although the process is difficult and lengthy. In a series of recent cases following the decision in the Matter of HealthAmerica, the U.S. Department of Labor (DOL) denied many PERM cases, since it was determined that the errors, although arguably typographical, in fact were substantive. This summary of some of those decisions is provided to help MurthyDotCom and MurthyBulletin readers and their attorneys avoid some of these problems to file better PERM cases and increase their chances of obtaining green card approval.
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Background on HealthAmerica Case
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This case was initially introduced to our readers in our August 11, 2006 article, BALCA Approves PERM Case : DOL Requests Return of Denied PERMs, available on MurthyDotCom. In that case, the Board of Alien Labor Certification Appeals (BALCA) reversed the denial of a PERM application in a decision issued in July 2006, Matter of HealthAmerica. In that decision, BALCA opined that the Certifying Officer (CO) abused his/her discretion in denying the PERM application simply due to a typographical error. Our readers were cautioned on the limited application of this ruling in our June 1, 2007 article, Further Analysis on LC Substitution Elimination Regulation, which provided an analysis of the regulation that went into effect on July 16, 2007. We then surmised that it still would allow for the denial of PERM applications involving typographical errors in some instances. Since the decision in the Matter of HealthAmerica, BALCA has issued a number of decisions in similar cases. This overview of the decisions should give our readers a more thorough understanding of which circumstances might more likely result in the denial of a PERM application due to various errors made on the labor certification (LC) form. It should also be noted that none of the cases referred to in this article was filed by the Murthy Law Firm, but summaries are available through published decisions or other sources.
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Typographical Errors versus Omissions
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Based on a number of opinions by BALCA, clearly unintentional typographical errors are treated with more flexibility than outright omissions. As indicated in many of the opinions, excusing omissions may be interpreted as rewarding hasty filings simply to secure a more favorable priority date. Opening the floodgates to accommodate careless omissions also would further congest the USCIS service centers. When an inference of careless neglect or misunderstanding exists, BALCA is less likely to reverse the CO’s decision.
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Failure to Mention Date of Education Completion : Fatal
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In a June 2007 case, BALCA upheld the denial of an LC in which the employer failed to provide the year the beneficiary's education was completed. In this decision, BALCA specifically stated that "[t]o allow employers to file incomplete or deficient applications knowing that they can later fix or complete them - while keeping the same priority date - might encourage employers to file such applications simply to lock-in a priority date."
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Failure to Mention Combination of Education and Experience : Fatal
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Similarly, in cases that fail to indicate acceptability of an alternate combination of education and experience, BALCA upheld the CO's denials. In these decisions, BALCA explained that the CO was effectively prevented from making a determination on two key points necessary for adjudication of the LC. Without this information, a CO can neither determine whether the alternative requirements are unlawfully tailored to the beneficiary's education and experience, nor can s/he determine whether the employer's job requirements corresponded to the actual minimum requirements. BALCA further stated that these were not "slight omissions" and constituted grounds for denial.
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Failure to Mention FEIN Number : Fatal
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The CO denied a case in which the employer omitted the FEIN number because it was not yet available. BALCA upheld the denial because the petitioner had not established itself as an "employer" at the time of filing.
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Missing DOL's Logo on PERM Filing : Not Fatal
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BALCA reversed the denial of the CO in at least one case in which the LC form submitted did not bear the Department of Labor (DOL) logo, noting that the employer did not have sufficient warning of the logo requirement on all forms, that there was no evidence of bad faith on the part of the employer, and that the denial would amount to an injustice and not satisfy the requirements of due process. These factors were consistent with the fundamental criteria established by the Matter of HealthAmerica.
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Generally, when an honest mistake is made and the employer proves compliance but for the typographical error, BALCA is less likely to uphold a denial. The circumstantial factors in the Matter of HealthAmerica are still relevant in determining what constitutes immaterial error; however, no bright-line rule exists in making this determination.
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Wrong Posting Date / No Name on W2 : Fatal
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BALCA upheld the denial of a number of PERM cases involving typographical errors. Among these was an instance in which the petitioner listed the wrong date for Sunday advertisements and another in which W2 forms requested by the CO did not bear the beneficiary's name.
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Incorrect DOL Office : Not Fatal
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An employer in one case erroneously listed on the posting notice the address of the NY certifying office rather than the Atlanta Processing Center. BALCA found that putting the wrong address on the posting notice should not result in a denial of the PERM application, as the NY office was still open at the time of the posting.
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Conclusion
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While the decision in the Matter of HealthAmerica still stands, it is important for employers to take every precaution to ensure that a simple mistake will not jeopardize the PERM filing and result in a denial. Because the circumstances of the Matter of HealthAmerica have very limited application, every filing should be carefully analyzed and individually prepared. The seeming simplicity of the LC form should not mislead employers and employees, as every question has a specific purpose. If your PERM case is, in fact, denied due to a typographical error, you should seek advice from an experienced, knowledgeable immigration attorney to discuss the options, including an appeal or a re-file and the likelihood of success with either option.
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