The controversy on PERM remands has gone full circle.
In the first PERM case, Healthamerica, 2006-PER-1, 2006, the Board of Alien Labor Certification Appeals held that the PERM Rule does not permit remands.
The reasons given were that there was nothing in the regulations to permit Remands and in the Preamble to the PERM Rule DOL had stated that there was no need for remands. In Healthamerica the Board needed to remand, because the error made by the employer was nothing more than a typographical mistake in the date for the second ad placed by the Employer. The Employer had placed the ads on the correct dates, but merely wrote the wrong date on the PERM form.
The DOL was enforcing a zero tolerance policy, whereby any error, however harmless and de minimis, would result in a denial. DOL had stated that the electronic, computerized review procedures of PERM did not permit any corrections to forms made by Employers.
The Board found that a zero tolerance policy might be acceptable, but would have to be accompanied by adequate warnings on the website and user-friendly tools to prevent employers from making unnecessary mistakes. In fact, in the post-Healthamerica world, warnings have appeared and the electronic filing program will not permit an error in the dates for Sunday ads which must be seven days apart.
The basis of the problem was FAQ Number 5 that stated that corrections cannot be made to an application after submission. Although the Board found that DOL's FAQ Number 5 to be arbitrary and capricious and not supported by any regulatory language, regulatory history or decisional law, the Board did not want to create a right for BALCA to remand Healthamerica's application to the CO for correction of the typographical error. Instead, the Board decided to "return the application to the Certifying Officer for further processing."
The distinction between a remand and a return for processing was purely linguistic. In actual fact, BALCA remanded Healthamerica, however, the Board revisited this issue in S. Chae Holding, Inc., 7 Car Wash, 2009-PER-135, March 2009.
The issue in this case was whether the Employer had filed the application for PERM within the 180 permissible time period. The CO agreed that the issue had been resolved, but the application had been denied and was pending at BALCA.
The Board stated that in Healthamerica the decision did not bar BALCA from remanding a case. Instead, Healthamerica only stated that the pre-PERM rule authorizing remands from BALCA had been removed in the PERM regulation. The Board went on to state that in Healthamerica the issue had been finessed so that an application could be returned to the CO for further processing.
The Board went on and stated, "We choose not to continue with the artificial resolution of the "remand" issue employed in the Healthamerica case because it is patently obvious that a distinction between a return of an application for further processing and a remand does not exist.
Although BALCA cannot rewrite a regulation, the language in the preamble is not a regulation, but only a reflection of an agency's reasoning. Under the Chevron case, Chevron v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843-44 (1984), agencies should be given deference to interpret their own rules.
However, since the DOL's interpretation of the PERM Rule in FAQ 5 and in the Preamble to the PERM Rule, to wit, that no remands would ever be necessary or permitted, is untenable, the Board concluded, "....this panel finds that the actual text of the PERM regulations does not bar remands, that the rationale of the preamble to the PERM regulations in regard to remands is not entitled to Chevron deference, and that this panel will exercise the power to remand where the circumstances so dictate."
The order held that the case was remanded for further proceedings consistent with the decision.