BALCA on Change in Authorized PERM Signatory

The Board of Alien Labor Certification Appeals (BALCA) reversed a PERM labor certification (LC) denial involving a change in the PERM application signatory at the time of an audit. This case illustrates the minute details that can determine success or failure in the PERM process. The facts of the case and legal issues presented are summarized below. The Murthy Law Firm did not file this PERM LC or represent this employer before BALCA. The summary of the case included below is based on public records and is provided for the benefit of MurthyDotCom readers.

Audit Requests Original Signatures

A PERM application, form ETA 9089, was filed by the employer in this case, Global Empire, LLC. It listed the president of the company as the PERM signatory. During an audit, the U.S. Department of Labor (DOL) requested an originally signed copy of the 9089. In response, the employer modified the 9089 signature block to reflect a new company representative’s name and title. The new company representative signed the form, which was, in turn, submitted with the audit response.

PERM Denied Due to Changes: Reconsideration Unsuccessful

The PERM application was denied following the DOL’s review of the audit response. The DOL found that the employer substantially failed to respond to the audit, because the person signing the form 9089 had changed from the initial PERM application.

The employer requested reconsideration of the denial, noting that the authorized signatory had been changed and that the new signatory had the case-specific knowledge needed to make the attestations on the PERM application. The certifying officer (CO), however, determined that the employer’s explanation for the signatory change could not even be taken into consideration. Rather, the CO interpreted the relevant regulation to require that such an argument can only be made during an audit. And, because the employer had failed to provide any explanation related to the signatory change during the audit, the decision by the DOL to deny the PERM had been appropriate. The employer refused to accept this decision and appealed to BALCA.

Audit File Documents Versus Other Documents

When an audit requests documents that the employer is required to keep in an audit file, a failure to supply those documents is presumed to be a substantial failure. This will result in a PERM denial. On the other hand, if the CO requests documents that the employer is not required to keep in the audit file, the DOL must consider: (1) whether the CO reasonably requested the documentation (i.e. whether the documentation was reasonably available) and (2) whether the omission of the documentation is material enough to constitute a substantial failure to provide required documents.

Employers are not required to keep a signed form 9089 in the audit file. BALCA, however, has determined previously that this document is reasonably available and material, and failure to provide it is presumed to be a substantial failure justifying a denial.

In this case, the employer did not fail to provide the signed forms. The employer submitted the signed forms, but with a new signatory. Thus, BALCA needed to determine whether this constituted a substantial failure, in addition to examining whether the explanation related to the signatory change could be considered, even though it was not included in the audit response.

BALCA Reverses Denial

BALCA disagreed with the CO’s refusal to accept the employer’s evidence and explanation during the request for reconsideration. In a request for reconsideration, the employer may include evidence previously submitted, as well as documentation that existed at the time of the audit, but which the employer did not have the opportunity to present. The CO cannot block admission of evidence at reconsideration if the circumstances of an audit do not alert the employer to the potential deficiency, and the evidence is not standard. BALCA found that the circumstances of the audit did not alert the employer to the fact that the change in signatory could be viewed as a deficiency and that it is not standard to have to explain such changes.

BALCA confirmed that, under applicable regulations, a PERM application will be denied if there is a substantial failure by an employer to provide documents requested in an audit. However, BALCA considered the legal distinction between documentation that is required to be kept by the employer in an audit file versus the documentation that is not. BALCA concluded that, based on the documentation that showed a change in the authorized signatory, there was no reason for the employer to provide a copy of 9089 signed by the signatory that was originally listed. Accordingly, BALCA reversed the denial of the PERM and remanded it for certification.

Conclusion

Every detail can matter in the PERM LC process. Here, a change in authorized personnel, which is a common occurrence in business, resulted in a denial and protracted battle to reverse the result. DOL COs tend to adjudicate PERM cases quite rigidly, treating even something that may appear insignificant as a fatal error. Accordingly, it is strongly recommended that employers retain an experienced immigration attorney to assist with the process.

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