Do Computers Run the PERM Program?



Attorney Who Made a Minor and
Harmless Mistake on the ETA-9089 Form



On March 9, 2010 Nathan Littauer Hospital & Nursing Home filed a PERM application on behalf of an employee.  PERM is the usual first step in employmentbased immigration.  It involves a test of the labor market and attestation that there are no US citizens or permanent residents ready, willing, and qualified to do the job offered to the non-citizen.

The employer (or more probably their attorney) made one little mistake on the PERM ETA-9089 form.  The employer failed to answer question J-23 which indicates if the Employer is presently employing the beneficiary.  The employer did complete section K where they indicated that the beneficiary was presently employed by the employer and that the beneficiary had been employed by the employer since 2005.

On April 26, 2010 the Department of Labor’s computers analyzed and denied the Employer’s application.  In the denial, the employer cited the sole reason for denial was the failure to answer question J-23.  Under the Department of Labor’s regulations, failure to complete all the questions on the PERM application is grounds for a denial of a PERM application. 

On May 6, 2010, the Employer asked the Certifying Officer to reconsider his denial.  In this request, the Employer stated that the failure to answer question J-23 is a typographical error, and the answer to question J-23 can be found in the employment history (section K -6 and K-7) of the form.   This was the first opportunity for the Department of Labor to exercise common sense.  They missed it.  On June 29, 2010 the Department of Labor forwarded this file to the Board of Alien Labor Certification Appeals (BALCA) and requested their denial be affirmed. 

On August 16, 2011 the BALCA vacated the DOL’s decision in this case.  BALCA observed that the folks at the DOL did not have to look beyond the same page of the original application to determine the response to the inadvertently omitted section of the application. “We find that the [DOL’s] denial based on a pro forma computer check was arbitrary and capricious.”  BALCA remanded the application to the DOL for further processing.

This is not the first such BALCA remand.  Similar remands for silly mistakes on the form can be found here, here and here.  I wish the people at the Department of Labor’s Employment & Training Administration would realize that people make mistakes, and that some mistakes are harmless.  I also wish that they would realize that policy decision to eschew common sense and litigate every possible grounds of denial of a PERM application all the way to the Board of Alien Labor Certification Appeal serves only to drive up the costs for employers and delay the final determination of an otherwise meritorious PERM application. 

Copyright 2011  Richard M. Green