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Bloggings: April 23, 2008

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

April 22, 2008

DOL Dilemma: How to Correct Form 9089?

A colleague reports that he made a mistake on the approved 9089. Form was certified with a serious error on it! The hapless Employer wants to know what to do! DOL has made it clear that after a PERM Form is printed out and sent to an Employer, the agency will have nothing more to do with it. In the real world, it's not that easy to walk away from one's defective work product. However, judge ye not, for there is benefit in this. Read further.

My colleague wrote, "I made a huge blunder and required 60 months experience in the job offered in section H6 and H6A instead of in an alternative occupation under H10 and 1H0A The strategy was to get an EB-2 classification based on a bachelors + 5. The beneficiary has used up his six years of H1-B eligibility."

My colleague continued, "Is it possible to amend a certified, based on a typographical error? I've reviewed the Health America BALCA decision. If there is a way to fix a typo on a denied labor cert, it would seem logical that a typo on a certified ETA-9089 could also be cured."

He then proposed an alternate strategy, namely "to submit a motion to reopen to the certified ETA-9089 for the purpose of amending the typo, send a copy to USCIS and ask them to hold adjudication of the I-140 and I-485 applications in abeyance until a decision could be obtained from DOL on the Motion to reopen and amend ETA-9089."

"I was also considering a Kellogg type argument to USCIS," he went on, "that it would be wrongful to deny the job to a U.S. worker with a bachelor's +5 in a related field and accordingly, if the recruitment effort showed that no U.S. worker with a bachelor + 5 applied, the I-140 for the beneficiary should be approved. The recruitment did not require five years experience in the job offered."

Although both these arguments are well reasoned, the problem with the is that according to Health America, the Employer bears the full responsibility for errors made and must suffer the consequences, unless the errors were caused by DOL. Remember, that in Health America the early version of the on-line 9089 did not include any warnings that the two Sunday ads typed on the electronic form were not seven days apart. That was held to be DOL's error, because the DOL site did not provide adequate warnings of a zero tolerance policy and did not include safeguards to minimize errors in data-input. In the instant case, the blunder was clearly the fault of the employer and not the DOL.

About the second strategy involving a Kellogg argument, we should say that Kellogg has been mostly dead for some time, and the argument, "If no U.S. worker was rejected, then no harm was done," has been rejected by DOL. The argument arose years ago in the context of alien ownership or control. DOL held that companies owned or controlled by aliens could not be used to certify them because of bad faith in the interview process. At that time, lawyers argued that if no U.S. workers applied to be interviewed or even applied for the job, why should it matter who owned or controlled the company? Unfortunately, DOL rejected this argument, claiming that there were no exceptions to the rule against alien ownership or control, even if U.S. workers were not available to be interviewed!

The instant dilemma is that the Employer wants the alien to continue working without interruption, but the alien's H-1B is coming to the end of its 6th year, the PERM approval is flawed, and the DOL will not allow a modification for good cause. Do you see any solution?

Here's a possible scenario. Note that the alien could continue renewing the H-1B beyond the sixth year under certain circumstances, one being that an I-140 has already been. Since DOL offers no solution to correct the error (even if caused by the DOL data entry contractors!) it follows that the Employer should file the I-140 with DHS with an explanation of the blunder. The argument would be that the error was unintended. To support his position, the Employer would provide documentation like of the Notice of Filing, Advertisements, the Prevailing Wage Request, and other recruitment efforts to prove that the requirements were not those stated on the 9089, but the ones used in the recruitment efforts. The Petitioner would then ask the DHS to approve the petition, notwithstanding the error. This would permit the applicant to continue with the H-1B, or alternatively to apply for adjustment and work authorization.

The DOL should not object to the Employer's explanations at DHS, since the DOL officially refuses to consider executing any corrections or modifications to approved PERM cases and has indicated that even DOL's own errors on the form can only be corrected by means of explanations provided to DHS at the I-140 stage of processing. Meanwhile, uncertain of DHS's ultimate decision, the petitioner should also file a new PERM application as a backup, without the original blunder!

What do you think? Please send your comments!