DOL Retracts Certain PERM Labor Certification Approvals

The Office of Foreign Labor Certification (OFLC), which is responsible for adjudicating PERM labor certification applications for the U.S. Department of Labor (DOL), has retracted the approvals issued on an unknown number of labor certifications. The OFLC claims these approvals were issued in error.

Background on Adjudication Process

The latest scandal that is slowly leaking out to the public stems from a series of approvals issued by the OFLC that subsequently were taken back. Under normal circumstances, after an employer files a labor certification application with the DOL using an ETA form 9089, the employer is notified via eMail once the application is approved. In a still-unknown number of cases, however, an eMail was sent out to employers telling them that their approved labor certification was issued by mistake. The notifications from the DOL read as follows:

The Atlanta National Processing Center (ANPC) is sending this email concerning your application filed under the Permanent Labor Certification Program. The certification letter and certified ETA Form 9089 was sent in error, which was emailed on DATE to the employer’s contact and authorized attorney / agent (if applicable) listed on case A-#####-#####. You will be informed when a final determination is issued or if there is a request for information. Thank you.

OFLC Known for Having No-Modification Policy

Ironically, the OFLC is notorious among immigration practitioners for being inflexible when it comes to applying regulations, and for implementing a no-modification policy. Even a small error or minor typo on a PERM labor certification can result in the denial of a case, and the OFLC generally prohibits any changes from being made to an application once it has been submitted. This can result in the loss of time and money, plus the potential of serious immigration problems for the beneficiary, all due to a very minor error by the employer.

Moreover, the revocation of approved labor certifications is governed by 20 CFR §656.32, and requires the certifying officer to issue notice of intent to revoke, among other steps, before the DOL may revoke an approved labor certification. Here, however, the OFLC seems comfortable with ignoring the standard regulatory requirement, as these approvals were made in error.

Conclusion

Perhaps it is understandable that an error like this could be made. However, the OFLC cannot have it both ways, being entirely rigid when it comes to the slightest error made by an employer, and yet ready to forgive itself when it commits a blunder such as this. We urge the OFLC to take this opportunity for some self-reflection as to how PERM labor certification cases are adjudicated, and to at least implement avenues of reprieve for employers for minor errors. Or, if not, it must hold itself to the same standard of perfection that it does employers.

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