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Bloggings On PERM Labor Certification

by Joel Stewart

April 25, 2011

PERM: Government Error Queue

The DOL "government error queue" is a line for PERM cases which have been denied and sent by Employers to the CO with requests for reconsideration. This queue is available only in cases that have been denied due to an error on the part of the government. Other cases with request for reconsideration, whether denied due to Employer error or for any other reason, go into the "regular" queue.

The qualitative difference between the two queues is that the government error queue is faster, maybe requiring a few weeks to obtain a corrected final determination, while the employer error queue may take several years. Although the designation of two queues is convenient, there will always be many cases which fall into a gray area but which may nevertheless be relegated to the employer error queue.

The PERM Rule became the law of the land on March 28, 2005, replacing the previous pre-PERM Rule, which permitted employers to respond to requests for evidence from the DOL prior to receiving a final determination. Hence, under the pre-PERM rule, an employer would receive a Notice which set forth reasons why the CO did not wish to approve the application for alien labor certification.

The practice of issuing a notice to request further information or to advise of some perceived deficiencies prior to issuing a final determination is routine in administrative law. For example, the USCIS may issue a Request for Evidence or a Notice of Intend to Deny, or both, prior to approving an application or petition. This form of Due Process ensures that correctable errors will not result in denials which then may require lengthy appeal processes or prejudice petitioners.

The 2005 PERM Rule eliminated this Due Process safeguard by eliminating the possibility to correct harmless errors during agency review of the application. This lack of opportunity to respond to  deficiencies results in many denials that may be incorrect, but which can then only be reversed upon the presentation of evidence, documentation or arguments by the Petitioner in the post-final determination stage of proceedings.

The Department of Labor purposely created the PERM Rule with less opportunity to provide rebuttal evidence to speed up the process and increase agency efficiency. Although these are admirable objectives, the practice, as applied, often results in unfair delays and prejudicial expenses to Employers.

The current situation is that the Department of Labor now uses the mechanism of reconsideration after denial of certification to correct errors that may be caused by the government, but these motions may only be used after final determinations (denials) from the agency -- hence the creation of the "government error queue." At the same time, errors that the government does not believe were made by the DOL, but may have been made by the employer, go into a separate queue which may take several years.

Not too long ago, motions to reconsider under PERM were taking about 2.5 years -- far longer than the expected processing time for PERM cases. In fact, PERM Final Determinations were originally heralded to take 60 days or less -- but this is a promise that has not always been kept.

One of the premises of the PERM Rule is that an employer who receives a denial should refile the application with the error corrected, instead of entering into a series of time consuming arguments and rebuttals with the agency. While the idea of refiling instead of rebutting is an interesting, innovative idea with great merit, it does not work if the employer receives the denial after the end of the 180 day validity period for filing.

Employers are required to start and complete the PERM recruitment process within 180 days, which includes a 30 day period (between 150 and 180 days) when recruitment is not permitted (except for one form of professional recruitment). Consequently, if an employer files a PERM case as early as possible (a period of about 61 days is the minimum time during which a PERM case may be prepared and filed by the Employer), and if the government takes up to 60 days to issue a determination, the Employer may still have time to correct the error, and to refile the PERM application without encountering the costs and efforts of the entire recruitment process.

Unfortunately, delays in PERM processing, beyond the 60 day period promised by the Agency, make it impossible for employers to refile applications, although they are so instructed on denials issued by the DOL, as it refiling were a viable option.

The point of all this is that the DOL, in its PERM rule, now uses denials to notify employers for the first time that there may be a correctable deficiency or problem and has eliminated the opportunity for employers to correct the problem prior to receiving a denial.

While the CO does not appear to perceive any difference in the two (pre-denial or post-denial) types of reconsideration, the post-denial procedure is clearly onerous and unfair, making it difficult for Employers to correct simple typographical errors or mistakes without going to a lengthy and complex appeal process or to begin a new and expensive recruitment process.

Surprisingly, there is a little-known part of the PERM Rule which permits the CO to request information from an Employer prior to issuing a denial, just as in the old Rule. This is found in 20 CFR 656.20(d), which states that the CO may (whether in the course of audit or otherwise) "request supplementation information and/or documentation."

Under this regulation, just as in pre-PERM procedure, the Certifying Officer may issue a request for evidence, instead of issuing a denial, thereby offering an opportunity for pre-denial rebuttal.

The DOL could easily use this regulation to resolve many problems of "harmless error" -- including typographical errors, omissions, and misunderstandings by offering the Employer an opportunity to rebut a negative finding prior to issuing a denial.

Just think how the Health America debacle could have been avoided, with all the legions of articles and interpretations that have been written about it by legal experts, and without subjecting BALCA to the difficult task of remanding the case when the regulations clearly did not permit remands -- all of this could have been avoided, if the CO had simply asked the HealthAmerica company to clarify that the two advertisements had indeed been placed on Sundays as required by the regulations.

One must also take notice that many errors on the PERM form occur due to ambiguities on the PERM Form 9089, vague instructions and interpretations by the Agency, inherent "bugs" in the on-line filing system, and problems inherent in the PERM Rule itself .

The current process requiring Employers to appeal to BALCA to resolve simple errors, many of which are innocent and harmless, clogs up the Board's docket and creates unnecessary and unfair delays, which were not anticipated by the reenginering process that resulted in the PERM Rule.

About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.