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Does a Compliant PERM Case That Has an Inadvertent Typo or Other
Harmless Error Have a Chance?
Innocent typographical errors
a) resulting in the denial
i) of otherwise compliant PERM cases
1) have long been a nightmare for practitioners.
a) due to typos
1) are not unusual, and
2) there are many BALCA cases
a) upholding such denials.
This practice pointer highlights an underutilized FAQ
a) published by the Department of Labor (DOL)
i) in December 2009
b) that could provide hope
i) for those
A) with a case
I) that has been denied
(a) due to a harmless error.
Evolution of Harmless Error
PERM was designed
a) to streamline the labor certification process and
b) discourage the back and forth
i) between the employer and the government
ii) that was commonplace
A) in the prior process.
Requiring a perfect ETA Form 9089
a) without the opportunity
i) to amend an innocent error
1) was justified by DOL
a) unlike the prior process,
b) the PERM regulations allow an employer
i) to immediately refile.
When PERM launched
a) in 2005,
1) it was anticipated that
a) a quick adjudication would allow one
i) to refile, if necessary,
A) using the original
I) prevailing wage determination
(a) (PWD) and
Within the first year
a) of the program, however,
1) processing times increased so substantially
i) PWDs and
had often expired
A) by the time
I) a denial was issued,
B) even in cases
I) that were not audited.
As slow processing times have continued,
1) the foundation
a) of the “trade-off”
A) perfect filings and
B) prompt adjudication
In Matter of HealthAmerica,
a) the first appellate decision
i) involving harmless error
A) in a PERM case,
1) BALCA held that
a) an innocent typographical error
i) regarding the date
A) of a Sunday advertisement
would not defeat the application
b) if it could be established that
i) the employer had the documentation,
A) prior to filing,
B) to demonstrate regulatory compliance.1
The decision relied upon
a) fundamental fairness as well as
b) the fact that
i) DOL did not specify
A) in the regulations
B) that the ETA Form 9089 had to be error-free.
possibly in response to HealthAmerica,
a) amended the PERM regulations and
b) added 20 CFR §656.11(b),
i) which prohibits the amendment
A) of ETA Form 9089.
The regulation therefore prohibits any forgiveness
a) of an innocent typographic error.
Second Thoughts by DOL
Two years later,
DOL published an FAQ
a) providing recourse
i) in limited situations.
The December 2009 FAQ,
i) “PERM Appeals Best Practices,”
1) is near the bottom
a) of the FAQ list
i) on the Office of Foreign Labor Certification (OFLC) website,
b) which may be
i) why it is frequently overlooked.
1 Matter of HealthAmerica (2006-PER-1, 7/18/06), available at http://www.aila.org/infonet/balca-matter-of- healthamerica-07-18-06. AILA Doc. No. 06071868.
The FAQ states:
An employer may,
i) in limited circumstances
A) as outlined below,
ii) make corrections
A) to the denied application
B) by filing a written request for reconsideration
I) within 30 calendar days
(a) from the date
(i) of issuance of the denial.
An employer only may make corrections
i) to a denied application
i) the incorrect or
is the result
I) a typographical error or
II) oversight and
iii) the correction is supported
A) by documentation
I) that existed
(a) at the time
(i) the Application
(A) for Permanent Labor Certification
(a) tear sheet or
(b) other advertisements,
(c) notice of filing,
(d) prevailing wage determination, etc.).
This documentation will be accepted
i) through a written request for reconsideration
1) only if the employer did not have an opportunity
i) to present the documentation
B) (e.g., in response to
I) an audit notification letter or
II) other such request
(a) by the Certifying Officer).2
a) that the employer did not have the opportunity
i) to present the documentation
1) mirrors the regulation
a) on motions for reconsideration
i) found at 20 CFR §656.24(g)(2)(ii).3
At the October 20, 2015, DOL Stakeholder Meeting,
1) the OFLC confirmed that
a) it will continue to follow this FAQ.4
Going to BALCA
Requests for review
a) based on harmless error
1) have had mixed results
a) at BALCA.5
these cases rarely cite the harmless error FAQ,
a) thus leading to the conclusion that
i) the FAQ is underutilized
A) as a basis for appeal.
the harmless error FAQ may provide a solid argument
a) to overcome a denial,
i) initially with OFLC
A) in a request for reconsideration, or
ii) later at BALCA
A) in a request for review.
The December 2009 FAQ provides a potential basis
a) for overcoming PERM denials
i) based on harmless error.
Practitioners should be sure
a) to follow the guidelines
i) for utilizing this argument
A) set forth
I) in the FAQ and
II) in the regulations
(a) under 20 CFR
(i) §§656.24 and
Though the FAQ is good ammunition
a) in overcoming a harmless error denial,
1) until the regulations are amended,
2) there is no guarantee
a) of success on appeal.
2 DOL FAQs on PERM Appeals, available at http://www.aila.org/infonet/dol-faqs-on-perm-appeals. AILA Doc No. 09120363 (posted 12/1/09).
3 Note that 20 CFR §656.24(g)(3) precludes the grant of reconsideration where the error was a result of disregarding a system prompt on the form. But so far, few system prompts have been implemented.
4 See Minutes from DOL Stakeholder Meeting (10/20/15), available at http://www.aila.org/infonet/dol-liaison- minutes-10-20-15. AILA Doc No. 15112536.
5 A thorough analysis of these BALCA cases can be found in “PERM Typos – a BALCA Roundup,” by JudyBordeau, Catherine L. Haight, and Marketa Lindt, Immigration Practice Pointers, 2015-16 Ed. available at https://agora.aila.org/product/detail/2734?sel=description, p. 483.
Permanent Labor Certification
Frequently Asked Questions: Appeals
December 1, 2009
The following “Frequently Asked Questions” (FAQs) are to clarify
best practices for filing a PERM appeal request with the National
Processing Center (NPC). The Department of Labor (the Department)
has created three distinct appeals queues. Distinguishing the type
of review being sought by the employer ensures the appeal enters
the correct processing appeals queue. Employers are encouraged to
follow these FAQs as guidance for future appeal filings.
Question: I received a decision on my labor certification. I want to appeal the
Department’s decision. What are my options for filing an appeal?
Answer: An employer currently has three options for appealing the Department’s
· Request for Reconsideration, pursuant to 20 CFR 656.24(g)(1)
· Request for Review before the Board of Alien Labor Certification Appeals
(BALCA), pursuant to 20 CFR 656.26(a)
· Request for Reconsideration based on alleged Department Error
Depending on the specific language used in the cover letter of the employer’s appeal,
the Department will assign the appeal request to the appropriate appeals queue.
Question: I would like the NPC to reconsider its decision on my labor certification
application. What should I include in my appeal to receive NPC reconsideration on my
Answer: An employer’s cover letter should make the reconsideration request by
explicitly using the term “reconsideration” to ensure proper classification of the appeal.
If an employer’s appeal request does not indicate which type of appeal is being sought,
the NPC will assume the appeal is a request for reconsideration and the appeal will
enter the request for reconsideration appeals queue.
Question: I filed an application that was denied based on incorrect or missing
information on the ETA Form 9089. I would like to correct the errors and appeal the
denial. How should I file this appeal to notify the NPC of my request?
Answer: An employer may, in limited circumstances as outlined below, make
corrections to the denied application and appeal the denial by requesting
reconsideration within 30 days from the date of issuance of the denial. An employer
only may make corrections to a denied application and appeal the decision if the
incorrect or missing information is the result of a typographical error or oversight and the
correction is supported by documentation that existed at the time the Application for
Permanent Labor Certification was filed (e.g., tear sheet or other advertisements, notice
of filing, prevailing wage determination, etc.). This documentation will be accepted for
reconsideration only if the employer did not have an opportunity to present the
documentation previously (e.g., in response to an audit notification letter or other such
request by the Certifying Officer). Requests for reconsideration will be adjudicated in
the reconsideration appeals queue. If the CO chooses to uphold the decision the
application will be forwarded to BALCA. If the CO chooses to overturn the decision the
application will be processed according to Department procedures.
Question: If I file a request for reconsideration and the NPC upholds its decision, what
happens to my appeal request?
Answer: If the NPC upholds its decision, the appeal is automatically forwarded to
BALCA for review. The NPC will create an appeal file for BALCA and will send a copy
of the appeal file to the employer. Question: May I concurrently file a request for reconsideration before the NPC and
request for review before BALCA?
Answer: If an employer files a cover letter requesting multiple forms of appeal, the
NPC will first process the appeal as a request for reconsideration. If the NPC upholds
its decision, the appeal file will be sent to BALCA for review. Question: For future cases, how will I know if my case was forwarded to BALCA?
Answer: An employer will receive a copy of the appeal file from the Department, which
will serve as notification to the employer that the NPC has upheld its decision and the
case has been forwarded to BALCA for review. Question: I do not want the NPC to reconsider its decision. I would like only BALCA to
review my appeal. How do I file a request for review solely before BALCA?
Answer: An employer’s cover letter should expressly include the terms “request for
review” to notify the NPC of the desired request for only BALCA review. Upon receipt of
the request for review, the NPC will assemble and send the appeal file to BALCA. A
copy of the NPC assembled appeal file will be sent to the employer, as well. Question: I previously submitted a request for reconsideration before the NPC. Now I
only want BALCA review. Can I now change my case’s appeal classification from a
request for reconsideration to a request for BALCA review?
Answer: No. Once the appeal request enters the request for reconsideration appeal
queue, the case may not be reclassified. If the NPC upholds its decision, the appeal
case will be forwarded to BALCA for review. Question: I received a decision of my labor certification application for what I believe is
a Department error. How should I file an appeal claiming a Department error?
Answer: In general, a Department error may be a denial due to a data entry error or a
denial for failure to respond to an audit where the employer has proof of its audit
response or proof it never received an audit request letter. If you believe your
application was inadvertently denied on this type of basis, the employer’s cover letter
must clearly state that the basis for the appeal is an alleged Department error. The
Department suggests a brightly colored cover sheet stating that the appeal is being filed
because the employer believes that the Department error is the sole reason for the
denial. If accepted as a Department error, the appeal will go to the Department error
appeals queue and be processed accordingly.
Question: What happens to my Department error appeal if the Department does not
agree that it made an error in its decision?
Answer: The Department determines what constitutes a Department error. It is
possible that the Department denial will list several reasons for a denial, with only one
that is based on a Department error. Each ground for appeal is viewed by the
Department individually. If the decision contains additional grounds that are not based
on Department error, or if the Department does not agree there is a Department error,
the Department will process the appeal as a request for reconsideration and place the
appeal in the NPC reconsideration appeals queue.
Question: Prior to the issuance of this FAQ I submitted an appeal with the NPC. How
can I find out in which queue my appeal request is?
Answer: An employer may inquire about the status of an appeal through the Help Desk
either via email at PLC.Atlanta@dol.gov or mailing a letter requesting the status of the
appeal to the Atlanta National Processing Center at: U.S. Department of Labor, Employment & Training Administration, Atlanta National Processing Center, Harris
Tower, 233 Peachtree Street, Suite 410, Atlanta, GA 30303.
20 CFR 656.24 - Labor certification determinations.
Authorities (U.S. Code)
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§ 656.24 Labor certification determinations.
(1) The Office of Foreign Labor Certification Administrator (OFLC Administrator) is the National Certifying Officer. The OFLC Administrator and the certifying officers in the ETA application processing centers have the authority to certify or deny labor certification applications.
(2) If the labor certification presents a special or unique problem, the Director of an ETA application processing center may refer the matter to the Office of Foreign Labor Certification Administrator (OFLC Administrator). If the OFLC Administrator has directed that certain types of applications or specific applications be handled in the ETA national office, the Directors of the ETA application processing centers shall refer such applications to the OFLC Administrator.
(b) The Certifying Officer makes a determination either to grant or deny the labor certification on the basis of whether or not:
(1) The employer has met the requirements of this part.
(2) There is in the United States a worker who is able, willing, qualified, and available for and at the place of the job opportunity.
(i) The Certifying Officer must consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation as customarily performed by other U.S. workers similarly employed. For the purposes of this paragraph (b)(2)(i), a U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.
(ii) If the job involves a job opportunity as a college or university teacher, the U.S. worker must be at least as qualified as the alien.
(3) The employment of the alien will not have an adverse effect upon the wages and working conditions of U.S. workers similarly employed. In making this determination, the Certifying Officer considers such things as: labor market information, the special circumstances of the industry, organization, and/or occupation, the prevailing wage in the area of intended employment, and prevailing working conditions, such as hours, in the occupation.
(c) The Certifying Officer shall notify the employer in writing (either electronically or by mail) of the labor certification determination.
(d) If a labor certification is granted, except for a labor certification for an occupation on Schedule A (§ 656.5) or for employment as a sheepherder under § 656.16, the Certifying Officer must send the certified application and complete Final Determination form to the employer, or, if appropriate, to the employer's agent or attorney, indicating the employer may file all the documents with the appropriate DHS office.
(e) If the labor certification is denied, the Final Determination form will:
(1) State the reasons for the determination;
(2) Quote the request for review procedures at § 656.26 (a) and (b);
(3) Advise that failure to request review within 30 days of the date of the determination, as specified in § 656.26(a), constitutes a failure to exhaust administrative remedies;
(4) Advise that, if a request for review is not made within 30 days of the date of the determination, the denial shall become the final determination of the Secretary;
(5) Advise that if an application for a labor certification is denied, and a request for review is not made in accordance with the procedures at § 656.26(a) and (b), a new application may be filed at any time; and
(6) Advise that a new application in the same occupation for the same alien can not be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.
(f) If the Certifying Officer determines the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application, or if the Certifying Officer determines it is appropriate for other reasons, the employer may be required to conduct supervised recruitment pursuant to § 656.21 in future filings of labor certification applications for up to two years from the date of the Final Determination.
(1) The employer may request reconsideration within 30 days from the date of issuance of the denial.
(2) For applications submitted after July 16, 2007, a request for reconsideration may include only:
(i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or
(ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of § 656.10(f).
(3) Paragraphs (g)(1) and (2) of this section notwithstanding, the Certifying Officer will not grant any request for reconsideration where the deficiency that caused denial resulted from the applicant's disregard of a system prompt or other direct instruction.
(4) The Certifying Officer may, in his or her discretion, reconsider the determination or treat it as a request for review under § 656.26(a).
[69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006; 72 FR 27945, May 17, 2007]
20 CFR 656.26 - Board of Alien Labor Certification Appeals review of denials of labor certification.
Authorities (U.S. Code)
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§ 656.26 Board of Alien Labor Certification Appeals review of denials of labor certification.
(a) Request for review.
(1) If a labor certification is denied, if a labor certification is revoked pursuant to § 656.32, or if a debarment is issued under § 656.31(f), a request for review of the denial, revocation, or debarment may be made to the Board of Alien Labor Certification Appeals by the employer or debarred person or entity by making a request for such an administrative review in accordance with the procedures provided in paragraph (a) of this section. In the case of a finding of debarment, receipt by the Department of a request for review, if made in accordance with this section, shall stay the debarment until such time as the review has been completed and a decision rendered thereon.
(2) A request for review of a denial or revocation:
(i) Must be sent within 30 days of the date of the determination to the Certifying Officer who denied the application or revoked the certification;
(ii) Must clearly identify the particular labor certification determination for which review is sought;
(iii) Must set forth the particular grounds for the request; and
(iv) Must include a copy of the Final Determination.
(3) A request for review of debarment:
(i) Must be sent to the Administrator, Office of Foreign Labor Certification, within 30 days of the date of the debarment determination;
(ii) Must clearly identify the particular debarment determination for which review is sought;
(iii) Must set forth the particular grounds for the request; and
(iv) Must include a copy of the Notice of Debarment.
(i) With respect to a denial of the request for review, statements, briefs, and other submissions of the parties and amicus curiae must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based.
(ii) With respect to a revocation or a debarment determination, the BALCA proceeding may be de novo.
(b) Upon the receipt of a request for review, the Certifying Officer immediately must assemble an indexed Appeal File:
(1) The Appeal File must be in chronological order, must have the index on top followed by the most recent document, and must have consecutively numbered pages. The Appeal File must contain the request for review, the complete application file, and copies of all the written material, such as pertinent parts and pages of surveys and/or reports upon which the denial was based.
(2) The Certifying Officer must send the Appeal File to the Board of Alien Labor Certification Appeals, Office of Administrative Law Judges, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002.
(3) The Certifying Officer must send a copy of the Appeal File to the employer. The employer may furnish or suggest directly to the Board of Alien Labor Certification Appeals the addition of any documentation that is not in the Appeal File, but that was submitted to DOL before the issuance of the Final Determination. The employer must submit such documentation in writing, and must send a copy to the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor, Washington, DC 20210.
(c) Debarment Appeal File. Upon the receipt of a request for review of debarment, the Administrator, Office of Foreign Labor Certification, immediately must assemble an indexed Appeal File:
(1) The Appeal File must be in chronological order, must have the index on top followed by the most recent document, and must have consecutively numbered pages. The Appeal File must contain the request for review, the complete application file(s), and copies of all written materials, such as pertinent parts and pages of surveys and/or reports or documents received from any court, DHS, or the Department of State, upon which the debarment was based.
(2) The Administrator, Office of Foreign Labor Certification, must send the Appeal File to the Board of Alien Labor Certification Appeals, Office of Administrative Law Judges, 800 K St., NW., Suite 400-N, Washington, DC 20001-8002.
(3) The Administrator, Office of Foreign Labor Certification, must send a copy of the Appeal File to the debarred person or entity. The debarred person or entity may furnish or suggest directly to the Board of Alien Labor Certification Appeals the addition of any documentation that is not in the Appeal File. The debarred person or entity must submit such documentation in writing, and must send a copy to the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210.
[69 FR 77386, Dec. 27, 2004, as amended at 72 FR 27945, May 17, 2007]