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                                                                                                     

BALCA: UTB Falls Down the Rabbit Hole

The Immigration and Nationality Act allows employers to petition for employees to receive permanent residence based on an offer of employment.  Most employment based immigrants must seek a “labor certification” or determination from the U.S. Department of Labor’s Employment and Training Division (DOLETA) that there are no U.S. citizens or permanent resident aliens that are ready, willing, and able to do the job the employer wants to offer the potential immigrant. 

In 2004, DOLETA published regulations on permanent labor certifications.  These regulations are intended to interpret the Immigration and Nationality Act and instruct employers and their potential employees on the process of obtaining a permanent labor certification.  The general public was invited to comment on the regulations. Click here to view the regulations in a pdf format.

In 2007, the DOLETA implemented the regulations and rolled out the PERM process of obtaining a labor certification.  Upon implementation, the DOL released a series of Frequently Asked Questions or FAQs.  Click here to read the FAQs.  These FAQs are detailed instructions on how to go about applying for a labor certification.  In reality, these FAQs amount to the DOLETA’s interpretation of DOLETA’s regulations that interpret the Immigration and Nationality Act.  Confused yet?

On July 20, 2011 the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of the University of Texas at Brownsville.  UTB filed an application for labor certification for one of its professors.  As a part of the test of the labor market and to fulfill its requirements under the PERM regulations, UTB ran an ad for the professor’s position in the Chronicle of Higher Education.  Like many professional journals and some newspapers, the Chronicle of Higher Education is an online only journal.

DOLETA’s Certifying Officer denied UTB’s application.  In the denial, the CO stated cited the FAQ section that states that if an employer is going to advertise a job in a professional journal, the employer must use a print journal.  UTB appealed to BALCA.  Upon review BALCA held that the PERM regulations are silent on the use of paper versus online only journals, and that DOLETA cannot create a substantive rule through publication of a FAQ.  BALCA found that DOLETA's FAQs are helpful interpretations of the regulations, but do not in and of themselves have the force of law because they have not complied with the Administrative Procedure Act’s notice and comment requirements.  BALCA determined that the CO abused his discretion by relying on the FAQ as a substantive rule to deny UTB's application.  BALCA reversed and sent the case back to CO for additional consideration.

Labor certification is complicated.  Employers and potential immigrants need skillful advocates to deal with governmental agencies that write their own rules and then write rules to interpret their rules.  Sometimes the only way out of the rabbit hole that is labor certification is to question the authority of the rules upon which the agency used to make its adverse decision.


Copyright 2011 Richard M. Green, All Rights Reserved