Just when we thought we understood that errors are not permitted in PERM applications -- that the forms must be completed 100% with all the i's dotted and the t's crossed, to the point of zero tolerance, and just when we thought that motions to reconsider may include new evidence in the nature of motions to reopen, BALCA has opened the door once again to a more liberal interpretation of non-material errors on Form 9089.
In Ben Pumo, 2009-PER-040, October 29, 2009, the Employer made several errors on the PERM form, but the errors were not material.
The BALCA panel wrote, "This panel -- while emphasizing that the regulations clearly require that petitioning employers submit complete applications -- has nonetheless recognized that some omissions may not be material to the review of the substance of an application. Thus in certain circumstances, we may find that a denial of reconsideration, absent an explanation by the CO as to why omissions are material was arbitrary and capricious."
The panel went on to say that in the instant case, "the Employer has made reasonable arguments as to why, in context, the omissions all were not material because other information that was provided on the Form answered the essential question posed by the form."
The panel also noted that the CO "has proffered no explanation for why the omissions prevented a complete review of the application.
The errors made by the Employer on the form included the following: Employer failed to provide information in questions I-11, I-8, M-1 and N-2. In other words, these items were left totally blank by the Employer.
However, the Board noted that the items were fully explained in other boxes that were properly executed. For example, although the fact that a newspaper had been selected (instead of a journal) was not checked, the name of a well known newspaper (Miami Herald) was written on the form. The box confirming that the ads were placed on Sundays was not checked, but the dates of publication given were, in fact, two Sundays. The box was not checked asking whether the application was completed by the employer, but the attorney had fully completed and signed the section certifying that she had prepared the application at the request of the employer. Finally, there was no title for the Employer, but the Employer was an individual rather than a legal entity.
The errors made by the Employer and/or attorney were excused by the BALCA panel because they were not material and because the Certifying Officer did not explain why the omissions prevented a complete review of the case.
Also interesting is that the Employer's explanation about a late filing, beyond the 30-day deadline, was accepted and the late filing of the Motion to Reconsider was accepted, because when the CO denied the motion to reconsider on the merits, and not on the technicality of a late filing of the motion, the Board found that the CO waived the issue of timeliness.
The lesson of this case is that materiality is the important issue in PERM processing, not mere technicalities. Although "harmless error" is specifically omitted from the PERM rule, it is, nevertheless, alive and well.