The Critical Need for Accuracy on a PERM Application

Of all the immigration filings an employer makes on behalf of a foreign employee, the PERM Labor Certification is the one in which small mistakes can cause the most damage. The PERM process is known to be exacting, and the U.S. Department of Labor (DOL) strictly enforces the accuracy of Form ETA-9089 to ensure that it matches the underlying recruitment, the prevailing wage determination, and the company’s records exactly. The consequences of a single typo can be impossible to fix. This article explains why that is and what an employer can do when a typo slips into a filed PERM application.

PERM Holds Employers to a Strict Standard

The DOL has been clear for a long time that PERM applications must be complete and accurate when filed. The regulation at 20 CFR § 656.11(b) says that the DOL will not accept or act on requests to modify an ETA-9089 after it has been filed. This was affirmed by the Board of Alien Labor Certification Appeals (BALCA) in 2013 in the case of Matter of Sushi Shogun where the employer entered a prevailing wage of $10.04 per hour on the form 9089 instead of $10.14 as listed on the prevailing wage determination. Despite the minor typo and no other substantive impact on the case, BALCA still affirmed the denial, as explained in the MurthyDotCom NewsBrief, Recent BALCA Decision Makes PERM Process Tougher (12.Jun.2013). This means that the DOL is not weighing whether a mistake caused real harm. It is checking whether the form is accurate. If the answer is no, the application is in serious trouble regardless of how minor the error looks or how clean the rest of the file is.

Once Filed, the 9089 Cannot be Corrected

Employers often are surprised to learn that the form 9089 cannot be edited once it has been submitted. There is no amendment form, no correction request, and no informal way to flag the error to a DOL officer. The application is locked the moment it is filed. It is irrelevant if all the supporting documents are correct.

Withdrawal and Refiling, if the Recruitment is Still Good

There is one solution that works when an error is caught early, and that is to withdraw the pending application and refile a corrected version, provided that the PERM recruitment for the position still is valid. PERM recruitment is valid for 180 days from the earliest recruitment step, so a case that still is inside that window can often be refiled without redoing the ads. Outside the 180-day window, withdrawal still may be needed, but the recruitment will have to be redone, causing a significant expense for the employer and a substantial delay for the foreign employee.

After a Denial: Reconsideration as a Limited Option

If the application has already been denied, the regulation allows the employer to file a request for reconsideration within 30 days. Reconsideration is not a mechanism for fixing typos, but it can give the employer a chance to argue that the DOL got the analysis wrong or that the alleged defect is not actually a defect.

There is also a strategic reason to file for reconsideration even when the chances of a reversal are not actually great. Under the American Competitiveness in the Twenty-First Century Act (AC21), a foreign national in H1B status is eligible for one-year extensions beyond the standard six-year limit based on the PERM filing date or if a PERM application has been pending for at least 365 days. A pending reconsideration request keeps the PERM application alive for that purpose.

Whether reconsideration makes sense in a given case depends on the facts. Some considerations include how close the employee is to the six-year H1B mark, if the underlying error actually is defensible on the merits, and how the timing lines up with a possible refile. There is no one-size-fits-all answer, but the option is worth weighing carefully before walking away from a denied case.

Recent Common Examples

Recent examples show how unforgiving the process remains. One common example is where travel language listed on the prevailing wage request was not entered on the form 9089. Although DOL guidance has not been clear regarding this, the DOL repeatedly has denied form 9089 applications for this omission. A second example is when an employer relies on a credential evaluation to show that the beneficiary meets the minimum degree requirement but provides insufficient details regarding the evaluation used. In both situations, the problem is not necessarily that the employee is unqualified or that the job terms are improper. It is that information is missing from the application and thus resulting in a denial.

Conclusion

The PERM process rewards careful preparation and punishes carelessness in ways that other immigration filings do not. Every detail must be complete and accurate before the form 9089 is filed. Due to the exacting nature of the PERM process, it is often worthwhile to use the services of a qualified immigration attorney. The Murthy Law Firm routinely files PERM applications and our attorneys are available to consult on all PERM related matters.

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