Recent BALCA Decision Makes PERM Process Tougher12 Jun 2013
A May 28, 2013 decision, issued by the U.S. Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) significantly limits options for fixing incorrect information on a PERM labor certification application. In Matter of Sushi Shogun BALCA has limited the use of the far more employer-friendly 2006 decision in Matter of HealthAmerica. These changes and the implications on the PERM labor certification process are explained here for MurthyDotCom readers. The Murthy Law Firm did not provide representation in either HealthAmerica or Matter of Sushi Shogun.
PERM Approved in HealthAmerica Based on Clerical Error
In HealthAmerica, an employer incorrectly listed the date a PERM-related newspaper advertisement ran. The employer had correctly advertised the job opening in the Sunday newspaper, but listed the date on the PERM application as Monday. The employer challenged the denial of the PERM and asked the U.S. Department of Labor (DOL) to consider evidence establishing that this was only a clerical mistake. When the DOL refused to reverse the denial, the employer appealed to BALCA arguing that the denial was unfair considering that the recruitment had been done properly.
In its first decision regarding the PERM program, BALCA agreed with the HealthAmerica employer. BALCA analyzed the PERM regulations and found that documentation submitted by an employer in support of a PERM application constructively includes the recruitment materials, as these must be maintained in audit files under PERM regulations. This allowed BALCA to conclude that evidence of HealthAmerica’s correct advertisement was available to be considered by the Certifying Officer (CO) and would fix the incorrect advertisement date listed on the ETA Form 9089. BALCA considered the injustice to the employer of a denial in the complicated PERM application process, in which the impact on the employer far outweighed the severity of its mistake.
BALCA in Sushi Shogun Case Limits HealthAmerica
In Sushi Shogun, BALCA reviewed a denial in which the CO found that the employer had incorrectly listed on the ETA Form 9089 a prevailing wage of $10.04 per hour. This was apparently a clerical error because the employer submitted with the PERM application a DOL issued prevailing wage determination that listed the prevailing wage as $10.14 per hour. Faced with a denial over a difference of $0.10 per hour, the employer requested reconsideration arguing that the problem was a minor typographical error. The employer cited to the decision in HealthAmerica as justifying the approval of the PERM application. The CO refused to reverse the denial, noting that the PERM regulations require that an employer file an application that is complete and accurate.
The employer appealed to BALCA, arguing that no potential job applicant would have known about the lower wage because the notice of filing listed the correct wage and the other recruitment did not list any wage information. The employer further argued that the penalty of having to go through the PERM process anew greatly outweighed any problem caused by the typographical error in the PERM application.
BALCA agreed that no potential job applicant would have known about the lower wage and no one would have been discouraged from applying for the advertised position. BALCA also agreed that the two entries of $10.04 in the PERM application were typographical errors. While BALCA normally would have followed HealthAmerica and reversed the denial under these facts, the Board found that HealthAmerica (decided in 2006) has been overruled by the DOL’s promulgation of a revised regulation in 2007, discussed below.
Corrections No Longer Permitted on ETA Form 9089
The DOL regulation at 20 CFR § 656.11(b) forbids any correction to a PERM application after July 16, 2007. After that date, no requests for modification of an ETA Form 9089 can be accepted or acted upon by the DOL.
PERM has always been a complicated and largely unforgiving process. Since the DOL promulgated 20 CFR § 656.11(b) and BALCA’s decision in Sushi Shogun, even minor defects in a PERM application may undo months of work and thousands of dollars invested. A detailed discussion of planning for the PERM process was included in MurthyDotCom article, PERM Labor Certification Process and Timing, Part 1 and Part 2. There simply is no room for error in PERM cases. Hence the importance of being accurate and verifying all the information before filing the PERM becomes critically important.
Now, more than ever, employers must be extremely careful in preparing and submitting PERM applications as part of their sponsorship of their valued employees for lawful permanent residence. The Murthy Law Firm will continue to monitor changes to the PERM labor certification process, and decisions by BALCA that affect the PERM process, to update our readers.
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